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STATE OF EUROPE 



THE MIDDLE AGES. 



Y HENRY HAL LAM 



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FROM THE SIXTH LONDON EDITION. 



COMPLETE IN ONE VOLUME. 



N E W-Y O R K ! 
PUBLISHED BY HARPER & BROTHERS, 

NO. 82 CLIFP-STREET. 
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PREFACE. 



^4> 

It is the object of the present work to exhibit, in a series of historical 
dissertations, a comprehensive survey of the chief circumstances that can 
interest a philosophical inquirer during the period usually denommaled the 
Middle Ages. Such an undertaking must necessarily fall under the class ol 
historical "abridgments : yet there will perhaps be found enough to distnigmsh 
it from such as have already appeared. Many considerable portions of time, 
especially before the twelfth century, may justly be deemed so barren of 
events worthy of remembrance, that a single sentence or paragraph is olten 
sufficient to give the character of entire generations, and of long dynasties 
of obscure kings. 

" Non ragioniam di lor, ma guarda e passa. 

And even in the more pleasing and instructive parts of this middle period, it 
has been my object to avoid the dry composition of annals, and aiming, with 
what spirit and freedom I could, at a just outline rather than a miniature, to 
suppress all events that did not appear essentially concatenated with others, 
or illustrative of important conclusions. But as the modes of government 
and constitutional laws which prevailed in various countries of Europe, and 
especially in England, seemed to have been less fully dwelt upon in former 
works of this description than mihtary or civil transactions, while they were 
deserving of far more attention, I have taken pains to give a true representa- 
tion of them, and in every instance to point out the sources from which the 
reader may derive more complete and original information. 

Nothing can be farther from my wishes than that the following pages 
should be judged according to the critical laws of historical composition. 
Tried in such a balance, they would be eminently defective. The limited 
extent of this work, compared with the subjects it enabraces, as well as its 
partaking more of the character of political dissertation than of narrative, 
must necessarily preclude that circumstantial delineation of events and of 
characters upon which the beauty as well as usefulness of a regular history 
so mainly depends. Nor can I venture to assert that it will be found alto- 
gether perspicuous to those who are destitute of any previous acquaintance 
with the period to which it relates ; though I have only presupposed, strictly 
speaking, a knowledge of the common facts of Enghsh history, and have 
endeavoured to avoid, in treating of other countries, those allusive references, 
which imply more information in the reader than the author designs to com- 
municate. But the arrangement which I have adopted has sometimes ren- 
dered it necessary to anticipate both names and facts, which are to find a 
more definite place in a subsequent part of the work. 

This arrangement is probably different from that of any former historical 
retrospect. Every chapter of the following volumes completes its particular 
subject, and may be considered in some degree as independent of the rest. 
The order, consequently, in which they are read, will not be very material, 
though of course I should rather prefer that in which they are at present dis- 



IV PREFACE. 

posed. A solicitude to avoid continual transitions, and to give free scope to 
the natural association of connected facts, has dictated this arrangement, to 
which I confess myself partial. And I have found its inconveniences so trifling 
in composition, that I cannot believe they will occasion much trouble to the 
reader. 

The first chapter comprises the history of France from the invasion of 
Clovis to the expedition, exclusively, of Charles VIII. against Naples. It 
is not possible to fix accurate limits to the Middle Ages : but though the ten 
centuries from the fifth to the fifteenth seem, in a general point of view, to 
constitute that period, a less arbitrary division was necessary to render the 
commencement and conclusion of an historical narrative satisfactory. The 
continuous chain of transactions on the stage of human society is ill divided 
by mere fines of chronological demarcation. But as the subversion of the 
western empire is manifestly the natural termination of ancient history, so 
the establislmient of the Franks in Gaul appears the most convenient epoch 
for the commencement of a new period. Less difiiculty occurred in finding 
the other limit. The invasion of Naples by Charles VIII. was the event 
that first engaged the principal states of Europe in relations of alliance or 
hostility which may be deduced to the present day, and is the point at which 
every man who traces backward its political history will be obliged to pause. 
It furnishes a determinate epoch in the annals of Italy and France, and nearly 
coincides with events which naturally terminate the history of the Middle 
Ages in other countries. 

The feudal system is treated in the second chapter, which I have subjoined 
to the history of France, with which it has a near connexion. Inquiries into 
the antiquities of that jurisprudence occupied more attention in the last age 
than at present, and their dryness may prove repulsive to many readers. 
But there is no royal road to the knowledge of law ; nor can any man render 
an obscure and intricate disquisition either perspicuous or entertaining. 
That the feudal system is an important branch of historical knowledge will 
not be disputed, when we consider not only its influence upon our own con- 
stitution, but that one of the parties which at present divide a neighbouring 
kingdom professes to appeal to the original principles of its monarchy, as 
they subsisted before the subversion of that polity. 

The four succeeding chapters contain a sketch, more or less rapid and 
general, of the histories of Italy, of Spain, of Germany, and of the Greek 
and Saracenic empires. In the seventh I have endeavoured to develop the 
progress of ecclesiastical power, a subject eminently distinguishing the Mid- 
dle Ages, and of which a concise and impartial delmeation has long been 
desirable. 

The English constitution furnishes materials for the eighth chapter. I 
cannot hope to have done suflicient justice to this theme, which has cost me 
considerable labour ; but it is worthy of remark, that since the treatise of 
Nathaniel Bacon, itself open to much exception, there has been no historical 
development of our constitution, founded upon extensive researches, or calcu- 
lated to give a just notion of its character. For those parts of Henry's his- 
tory which profess to trace the progress of government are still more jejune 
than the rest of his volumes ; and the work of Professor Millar, of Glasgow, 
however pleasing from its liberal spirit, displays a fault too common among 
the philosophers of his country, that of theorizing upon an imperfect induc- 
tion, and very often upon a total misapprehension of particular facts. 



PREFACE. 



The ninth and last chapter relates to the general state of society in Europe 
during the Middle Ages, and comprehends the history of commerce, of man- 
ners, and of hterature. None however of these are treated in detail, and the 
whole chapter is chiefly designed as supplemental to the rest, in order to vary 
the relations under which events may be viewed, and to give a more adequate 
sense of the spirit and character of the Middle Ages. 

In the execution of a plan far more comprehensive than what, with a due 
consideration either of my abilities or opportunities, I ought to have under- 
taken, it would be strangely presumptuous to hope that I can have rendered 
myself invulnerable to criticism. Even if flagrant errors should not be fre- 
quently detected, yet I am aware that a desire of conciseness has prevented 
the sense of some passages from appearing sufficiently distinct ; and though 
I cannot hold myself generally responsible for omissions, in a work which 
could only be brought within a reasonable compass by the severe retrench- 
ment of superfluous matter, it is highly probable that defective information, 
forgetfulness, or too great a regard for brevity, has caused me to pass over 
many things which would have materially illustrated the various subjects of 
these inquiries. 

I dare not, therefore, appeal with confidence to the tribunal of those supe- 
rior judges, who, having bestowed a more undivided attention on the particu- 
lar objects that have interested them, may justly deem such general sketches 
imperfect and superficial ; but my labours will not have proved fruitless, if 
they shall conduce to stimulate the reflection, to guide the researches, to cor- 
rect the prejudices, or to animate the liberal and virtuous sentiments of in- 
quisitive youth : 

" Ml satis ampla 
Merces, et mihi grande decus, sim ignotns in sevum 
Turn licet, externo penitusque inglorius orbi." 



CONTENTS. 



CHAPTER I. 

THE HISTORY OF FRANCE, FROM ITS 
CONQUEST BY CLOVIS TO THE INVA- 
SION OF NAPLES BY CHARLES VIIL 

PART I. 

Fall of the Roman Empire. — Invasion of Clovis. — 
First race of French Kings. — Accession of Pe- 
pin. — State of Italy. — Charlemagne. — His Reign 
and Character. — Louis the Debonair. — His Suc- 
cessors. — Calamitous state of the Empire in the 
ninth and tenth Centuries. — Accession of Hugh 
Capet. — His first Successors. — Louis VII. — 
Philip Augustus. — Conquest of Normandy. — 
War in Languedoc. — Louis IX. — His Charac- 
ter. — Digression upon the Crusades. — Philip III. 
— Philip IV. — Aggrandizement of French Mon- 
archy under his Reign. — Reigns of his Children. 
— Question of Salique-Law. — Claim of Edward 
III. Page 17 

PART II. 

War of Edward III. in France.— Causes of his 
Success. — Civil Disturbances of France. — Peace 
of Bretigni — its Interpretation considered. — 
Charles V. — Renewal of the War. — Charles VI. 
— his Minority and Insanity. — Civil Dissensions 
of the Parties of Orleans and Burgundy. — Assas- 
sination of both these Princes. — Intrigues of 
their Parties with England under Henry IV. — 
Henry V. invades France. — Treaty of Troyes. — 
State of France in the first Years of Charles VII. 
— Progress and subsequent Decline of the Eng- 
lish Arms — their Expulsion from France. — 
Change in the Political Constitution. — Louis XI. 
— his Character. — Leagues formed against him. 
— Charles, Duke of Burgundy — his Prosperity 
and Fall. — Louis obtains Possession of Burgun- 
dy — his Death. — Charles VIII. — Acquisition of 
Britany 39 



CHAPTER H. 

ON THE FEUDAL SYSTEM, ESPECIAL- 
LY IN FRANCE. 

PART L 

State of Ancient Germany. — Effects of the Con- 
quest of Gaul by the Franks. — Tenures of Land. 
— Distinction of Laws. — Constitution of the an- 
cient Frank Monarchy. — Gradual Establishment 
of Feudal Tenures. — Principles of a Feudal Re- 
lation. — Ceremonies of Homage and Investiture. 
— Military Service. — Feudal Incidents of Relief, 
Aid, Wardship, &c— Different Species of Fiefs. 
—Feudal Law-books 64 



PART II. 

Analysis of the Feudal System. — Its local extent. 
— View of the different Orders of Society during 
the Feudal Ages. — Nobility — their Ranks and 
Privileges.— Clergy. — Freemen. — Serfs or Vil- 
leins. — Comparative State of France and Ger- 
many. — Privileges enjoyed by the French Vas- 
sals. — Right of coining Money— and of private 
War. — Immunity from Taxation. — Historical 
View of the Royal Revenue in France. — Meth- 
ods adopted to augment it by depreciation of the 
Coin, &c. — Legislative Power — its state under 
the Merovingian Kings — and Charlemagne. — 
His Councils. — Suspension of any general Legis- 
lative Authority during the prevalence of Feudal 
Principles. — The King's Council. — Means adopt- 
ed to supply the Want of a National Assembly. 
— Gradual Progress of the King's Legislative 
Power. — Philip IV. assembles the States Gen 
era). — Their Powers limited to Taxation. — 
States under the Sons of Philip IV. — States of 
1355 and 1356. — They nearly effect an entire 
Revolution. — The Crown recovers its Vigour. — 
States of 1380, under Charles VII.— Subsequent 
Assemblies under Charles VI. and Charles VII 
— The Crown becomes more and more absolute. 
— Louis XI. — States of Tours in 1484. — Histori- 
cal View of Jurisdiction in France. — Its earli- 
est stage under the first Race of Kings, and 

.- Charlemagne. — Territorial Jurisdiction. — Feu- 
dal Courts of Justice. — Trial by Combat. — Code 
of St. Louis. — The Territorial Jurisdictions give 
way. — Progress of the Judicial Power of the 
Crown. — Parliament of. — Paris. — Peers of 
France. — Increased AutHority of the Parliament. 
— Registration of Edicts. — Causes of the Decline 
of Feudal System. — Acquisitions of Domain by 
the Crown. — Charters of Incorporation granted 
to Towns. — Their previous Condition. — First 
Charters in the twelfth Centuiy. — Privileges 
contained in them. — Military Service of Feudal 
Tenants commuted for Money. — Hired Troops. 
— Change in the Military System of Europe. — 
General View of the Advantages and Disadvan- 
tages attending the Feudal System - - 83 



CHAPTER HI. 

THE HISTORY OF ITALY, FROM THE 
EXTINCTION OF THE CARLOVINGIAN 
EMPERORS TO THE INVASION OF NA- 
PLES BY CHARLES VIIL 

PART I. 

State of Italy after the death of Charles the Fat. — 
Coronation of Otho the Great. — State of Rome. 
— Conrad II. — Union of the Kingdom of Italy 



CONTENTS. 



VU 



with the Empire— Establishment of the Nor- 
mans in Naples and Sicily.— Roger Guiscard — 
Rise of the Lombard Cities.— They gradually 
become more independent of the Empire.— 1 heir 
Internal Wars. — Frederick Barbarossa. — De- 
struction of Milan.— LombarO. Lebgue.— Battle 
of Legnano.— Peace of Constance.— Temporal 
Principality of the Popes.— Guelf and Ghibelin 
Factions.-Otho IV.— Frederick II. — Arrange- 
ment of the Italian Republics.— Second Lombard 
War.— Extinction of the House of Swabia.— 
Causes of the Success of Lombard Republics.— 
Their prosperity— and Forms of Government.— 
Contentions between the Nobility and People. 
—Civil Wars— Story of Giovanm di vicenza 

Page 125 

PART n. 

State of Italy after the Extinction of the House of 
Swabia.— Conquest of Naples by Charles of 
Aniou.— The Lombard Repubhcs become sever- 
ally subject to Princes or Usurpers.— The Vis- 
conti of Milan— their Aggrandizement.— Decline 
of the Imperial Authority over Italy.— Internal 
State of Rome.— Rienzi.— Florence— her forms 
of Government historically traced to the end of 
the fourteenth Century.— Conquest of Pisa.— 
Pisa— its Commerce, Naval Wars with Genoa, 
and Decay.— Genoa— her Contentions with Ven- 
ice -War of Chioggia.— Government of Genoa. 
—Venice— her Origin and Prosperity.— Vene- 
tian Government— Its Vices.— Territorial Con- 
quests of Venice.— Military System of Italy.— 
Companies of Adventure.— 1. foreign ; Guarni- 
eri, Hawkwood— and 2. native ; Braccio, Sforza. 
Improvements in Military Service.— Arms, offen- 
sive and defensive.— Invention of Gunpowder.— 
Naples.— First Line of Anjou.— Joanna I.— La- 
dislaus.— Joanna II.— Francis Sforza becomes 
Duke of Milan.— Alfonso, king of Naples.— 
State of Italy during the fifteenth Century.— 
Florence.— Rise of the Medici, and Ruin of their 
Adversaries.— Pretensions of Charles VIII. to 
Naples - 148 



CHAPTER V. 

HISTORY OF GERMANY TO THE DIET 
OF WORMS IN 1495. 

Sketch of German History under the Emperors of 
the House of Saxony.— House of Franconia.— 
Henry IV.— House of Swabia.— Frederick Bar 
barossa.— Fall of Henry the Lion.— Frederick IL 
— Extinction of House of Swabia. — Changes ia 
the Germanic Constitution.— Electors.— Terri- 
torial Sovereignty of the Princes.— Rodolph of 
Hapsburg.— State of the Empire after his Time. 
—Causes of Decline of Imperial Power.— House 
of Luxemburg.— Charles IV.— Golden Bull.— 
House of Austria.— Frederick III.— Imperial 
Qities.— Provincial States.— Maximilian.— Diet 
of Worms.— Abolition of private Wars.— Im- 
perial Chamber.— Aulic Council.— Bohemia.— 
Hungary.— Switzerland - - - Page 227 



CHAPTER VI. 

HISTORY OF THE GREEKS AND SARA- 
CENS. 

Rise of Mahometanism.— Causes of its Success. — 
Progress of Saracen Arms.— Greek Empire.— 
Decline of the Khalifs.— The Greeks recover 
part of their Losses.— The Turks.- The Cru- 
sades.— Capture of Constantinople by the Lat- 
ins.— Its Recovery by the Greeks.— The Mo- 
guls.— The Ottomans.— Danger at Constantino- 
ple. — Timur. — Capture of Constantinople by Ma- 
homet II.— Alarm of Europe - - - 249 



CHAPTER IV. 

THE HISTORY OF SPAIN TO THE CON- 
QUEST OF GRANADA. 

Kingdom of the Visigoths.— Conquest of Spain by 
the Moors.— Gradual Revival of the Spanish 
Nation.— Kingdoms of Leon, Aragon, Navarre, 
and Castile, successively formed.— Chartered 
Towns of Castile.— Military Orders.— Conquest 
of Ferdinand III. and James of Aragon.— Causes 
of the delay in expelling the Moors.— History of 
Castile continued.— Character of thegovernment. 
—Peter the Cruel— House of Trastamare.— 
John II.— Henry IV.— Constitution of Castile.— 
National Assemblies or Cortes.— Their constitu- 
ent parts.— Right of Taxation.— Legislation.— 
Privy Council of Castile.— Laws for the protec- 
tion of Liberty.— Imperfections of the Constitu- 
tion.— Aragon.— Its history in the fourteenth and 
fifteenth centuries.— Disputed succession.— Con- 
stitution of Aragon.— Free spirit of its Aristoc- 
racy —Privilege of Union.— Powers of the Jus- 
tiza.— Legal Securities.— Illustrations.— Other 
Constitutional Laws.— Valencia and Catalonia. 
—Union of two Crowns by the Marriage of Fer- 
dinand and Isabella.— Conquest of Granada 197 



CHAPTER VII. 

HISTORY OF ECCLESIASTICAL POWER 
DURING THE MIDDLE AGES. 

Wealth of the Clergy— its Sources.— Encroach- 
ments on Ecclesiastical Property— their Juris- 
diction — arbitrative — coercive — their Political 
Power. — Supremacy of the Crown. — Charle- 
magne.— Change after his Death, and Encroach- 
ments of the Church in the ninth Century.— Pri- 
macy of the See of Rome— its early Stage. — 
Gregory I.— Council of Frankfort— false Decre- 
tals.— Progress of Papal Authority. — Effects of 
Excommunication. — Lolhaire. — State of the 
Church in the tenth Century. — Marriage of 
Priests. — Simony.— Episcopal Elections.— Im- 
perial Authority over the Popes.— Disputes con- 
cerning Investitures.- Gregory VII. and Henry 
IV.— Concordat of Calixtus.— Election by Chap- 
ters—general System of Gregory VII.— Progress 
of Papal usurpations in the twelfth Century.— 
Innocent III.— his Character and Schemes— con- 
tinual Progress of the Papacy. — Canon Law. — 
Mendicant Orders— dispensing Power.— Taxa- 
tion of the Clergy by the Popes.— Encroachments 
on Rights of Patronage.— Mandats, Reserves, 
&c.— General Disaffection towards the See of 
Rome in the thirteenth century.— Progress of 
Ecclesiastical Jurisdiction. — Immunity of the 
Clergy in Criminal Cases.— Restraints imposed 
upon their Jurisdiction— upon their Acquisition 
of Property.— Boniface VHI.- his Quarrel with 
Philip the Fair— its Termination.— Gradual De- 
cUneof Papal Authority.— Louis of Bavaria — 



VlU 



CONTENTS. 



Secession to Avignon and Return to Rome.— 
Conduct of Avignon Popes — contested Election 
of Urban and Clement produces the great Schism. 
— Council of Pisa — Constance— Basle. — Meth- 
ods adopted to restrain the Papal usurpations in 
England, Germany, and France. — Liberties of 
the Galilean Church. — Decbne of the Papal In- 
fluence in Italy .... Page 261 



CHAPTER VIII 

PART I. 

THE CONSTITUTIONAL HISTORY OF 
ENGLAND. 

The Anglo-Saxon Constitution. — Sketch of An- 
glo-Saxon History. — Succession to the Crown. 
— Orders of Men. — Thanes and Ceorls. — Wit- 
tenagemot. — Judicial System. — Division into 
Hundreds. — County-Court. — Trial by Jury — its 
Antiquity investigated. — Law of Frank-pledge — 
its several Stages. — Question of Feudal Ten- 
ures before the Conquest - - - 318 

PART 11. 

THE ANGLO-NORMAN CONSTITUTION. 

The Anglo-Norman Constitution.— Causes of the 
Conquest. — Policy and character of William — 
his Tyranny. — Introduction of Feudal Services. 
— Difference between the Feudal Governments 
of France and England. — Causes of the great 
Power of the first Norman Kings.— A rbitrary 
Character of their Government. — Great Council. 
— Resistance of the Barons to John. — Magna 
Charta — its principal Articles. — Reign of Henry 
III. — The Constitution acquires a more liberal 
Character. — Judicial System of the Anglo-Nor- 
mans. — Curia Regis, Exchequer, &c. — Estab- 
lishment of the Common Law — its effect in fix- 
ing the Constitution. — Remarks on the Limita- 
tion of Aristocratical Privileges in England 332 

PART in. 

THE ENGLISH CONSTITUTION. 

Reign of Edward I. — Confirmatio Chartarum. — 
Constitution of Parliament — the Prelates — the 
Temporal Peers. — Tenure by Barony — its 
Changes. — Difficulty of the Subject. — Origin of 
Representation of the Commons. — Knights of 
Shires — their Existence doubtfully traced 
through the Reign of Henry III. — Question 
whether Representation was confined to Ten- 
ants in capite discussed. — State of English 
Towns at the Conquest and afterward — their 
Progress. — Representatives from them summon- 
ed to Parliament by Earl of Leicester. — Im- 
probability of an earlier Origin. — Cases of St. Al- 
ban's and Barnstaple considered. — Parliaments 
under Edward I. — Separation of Knights and 
Burgesses from the Peers. — Edward II. — grad- 
ual progress of the Authority of Parliament 
traced through the Reigns of Edward III. and 
his successors down to Henry VI. — Privilege of 



Parliament — the early instances of it noticed.— 
Nature of Borough Representation. — Rights of 
Election — other particulars relative to Elec- 
tions. — House of Lords. — Baronies by Tenure 
— by Writ. — Nature of the latter discussed.— 
Creation of Peers by Act of Parliament and by 
Patent. — Summons of Clergy to Parliament.— 
King's Ordinary Council— its Judicial and othei 
Power. — Character of the Plantagenet Govern 
ment. — Prerogative — its Excesses — erroneous 
Views corrected. — Testimony of Sir John For- 
tescue to the Freedom of the Constitution.— 
Causes of the superior Liberty of England con 
sidered. — State of Society in England. — Want 
of Police. — Villanage — its gradual extinction- 
latter years of Henry VI. — Regencies. — Instan- 
ces of them enumerated. — Pretensions of the 
HoHse of York, and War of the Roses. — Ed- 
ward IV. — Conclusion - - - Page 353 



CHAPTER IX. 

PART I. 

ON THE STATE OF SOCIETY IN ED 
ROPE DURING THE MIDDLE AGES. 

Introduction. — Decline of Literature in the latter 
period of the Roman Empire. — Its Causes. — 
Corruption of the Latin Language. — Means by 
which it was effected. — Formation of new Lan- 
guages. — General Ignorance of the Dark Ages. — 
Scarcity of Books. — Causes that prevented the 
total Extinction of Learning. — Prevalence ot 
Superstition and Fanaticism. — General Corrup 
tion of Religion. — Monasteries — their Effects. — 
Pilgrimages. — Love of Field Sports. — State of 
Agriculture — of Internal and Foreign Trade 
down to the End of the Eleventh Century. — Im 
provement of Europe dated from that Age 450 

PART n. 

Progress of Commercial Improvement in Germany, 
Flanders, and England. — In the North of Europe. 
— In the Countries upon the Mediterranean Sea 
— Maritime Laws. — Usury. — Banking Compa- 
nies. — Progress of Refinement in Manners. — 
Domestic Architecture. — Ecclesiastical Archi- 
tecture. — State of Agriculture in England. — 
Value of Money. — Improvement of the Moral 
Character of Society — its Causes. — Police. — 
Changes in Religious Opinion.— Various Sects. 
— Chivalry — its Progress, Character, and Influ- 
ence. — Causes of the Intellectual Improvement < 
of European Society. — 1. The Study of Civil 
Law. — 2. Institution of Universities— their Cele- 
brity. — Scholastic Philosophy. — 3. Cultivation 
of Modern Languages. — Provenijal Poets. — 
Norman Poets. — French Prose Writers. — Italian 
— early Poets in that Language. — Dante. — 
Petrarch. — English Language — its Progress. — 
Chaucer. — 4. Revival of Classical Learning. — 
Latin writers of the Twelfth Century. — Litera- 
ture of the Fourteenth Century. — Greek Litera- 
ture — its Restoration in Italy. — Invention of 
Printing . . . . ^ . . 474 



VIEW 

OF 

THE STATE OF EUROPE 

DURING THE MIDDLE AGES. 



CHAPTER I. 

THE HISTORY OF FRANCE, FROM ITS CONQUEST BY CLOVIS TO THE 
INVASION OF NAPLES BY CHARLES VIII. 



PART I. 

Fa.l of the Roman Empire. — Invasion of Clovis. — 
First race of French Kings. — Accession of Pe- 
pin. — State of Italy. — Charlemagne. — His Reign 
and Character. — Louis the Debonair. — His Suc- 
cessors. — Calamitous state of the Empire in the 
ninth and tenth Centuries. — Accession of Hugh 
Capet. — His first Successors. — Louis VII. — 
Philip Augustus. — Conquest of Normandy. — 
War in Languedoc. — Louis IX. — His Charac- 
ter. — Digression upon the Crusades. — Philip III. 
— Philip IV. — Aggrandizement of French Mon- 
archy under his Reign. — Reigns of his Children. 
— Question of Salique-Law. — Claim of Edward 
111. 

Before the conclusion of the fifth cen- 
tury, the mighty fabric of empire, which 
valour and policy had founded upon the 
Subversion of sevcu hills of Rome, was final- 
the Roman ly overthrown, in all the west 
Empire. ^^ Europe, by the barbarous 
nations from the north, whose martial 
energy and whose numbers were irre- 
sistible. A race of men, formerly un- 
known or despised, had not only dismem- 
New settle- bered that proud sovereignty, 
but permanently settled them- 
selves in its fairest provinces, 
and imposed their yoke upon 
ancient possessors. The Vandals 



ments of the 
barbarous na- 
tions. 



the 



were masters of Africa ; the Suevi held 
part of Spain ; the Visigoths possessed 
the remainder, with a large portion of 
Gaul; the Burgundians occupied the 
provinces Avatered by the Rhone and Sa- 
one ; the Ostrogoths almost all Italy. 
The northwest of Gaul, between the 
Seine and the Loire, some writers have 
filled with an Arraorican republic ;* while 

* It is impossible not to speak skeptically as to 
this republic., or rather confederation of independ- 
B 



the remainder was still nominally subject > 
to the Roman empire, and governed by 
a certain Syagrius, rather with an inde- 
pendent than a deputed authority. 

[A. D. 486.] At this time, Clovis, king 
of the Sail an Franks, a tribe of invasion of 
Germans long connected with ti'ovis. 
Rome, and originally settled upon the 
right bank of the Rhine, but who had lat- 
terly penetrated as far as Tournay and 
Cambray,* invaded Gaul, and defeated Sy- 
agrius at Soissons. The residt of this vic- 
tory was the subjugation of those prov- 
inces which had previously been consid- 
ered as Roman. But as their allegiance 
had not been very strict, so their loss was 
not very severely felt ; since the empe- 
rors of Constantinople were not too proud 
to confer upon Clovis the titles of consul 
and patrician, which he was too prudent 
to refuse. t 



ent cities under the rule of their respective bish 
ops, which Du Bos has with great ingenuity raised 
upon very slight historical evidence, and in defiance 
of the silence of Gregory, whose see of Tours bor 
dered upon their supposed territory. But his hy 
pothesis is not to be absolutely rejected, because it 
is by no means deficient in internal probability, and 
the early part of Gregory's history is brief and neg- 
ligent. Du Bos, Hist. Critique de I'Etablissement 
des Fran(;ais dansles Gaules, t. i.,p. 253. Gibbon, 
c. 38, after following Du Bos in his text, whispers 
as usual, his suspicions in a note. 

* The system of P6re Daniel, who denies any 
permanent settlement of the Franks on the left 
bank of the Rhine before Clovis, seems incapable 
of being supported. It is diflicult to resist the pre 
sumption that arises from the discovery of the 
tomb and skeleton of Childeric, father of Clovis, at 
Tournay, in 1053. See Montfaucon, Monumens 
de la Monarchie Fran(;aisc, tome i., p. 10. 

t The theory of Du Bos, who considcr.s Clovis 
as a sort of lieutenant of the emperors, ,ind as gov- 



18 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



Some years after tins, Clovis defeated 
the Alemanni, or Swabiaiis, in a great bat- 
tle at Zulpich, near Cologne. In conse- 
quence of a vow, as it is said, made du- 
ring this engagement,* and at the insti- 
gation of his wife Clotilda, a princess of 
Burgmidy, he became a convert to Chris- 
tianity. [A. D. 496.] It would be a fruit- 
less inquiry whether he was sincere in 
this change ; but it is certain, at least, 
that no policy could have been more suc- 
cessful The Arian sect, which had been 
early introduced among tlie barbarous na- 
tions, was predominant, tliough apparent- 
ly without intolerance,t in the Burgundi- 
an and Visigoth courts ; but the clergy of 
Gaul were strenuously attached to the 
Catholic side, and even before his con- 
version had favoured the arms of Clovis. 
They now became his most zealous sup- 
porters ; and were rewarded by him with 

erning the Roman part of his subjects by no other 
title, has justly seemed extravagant to later critical 
inquirers into the history of France. But it may 
nevertheless be true, that the connexion between 
him and the empire, and the emblems of Roman 
magistracy which he bore, reconciled the conquer- 
ed to their new masters. This is judiciously sta- 
ted by the Duke de Nivernois. Mem. de I'Acad. 
des Inscript., tome xx., p. 174. In the sixth century, 
however, the Greeks appear to have been nearly 
ignorant of Clovis's countrymen. Nothing can be 
made out of a passage in Procopius, where he 
seems to mention the Armoricans under the name 
Ap6o(,vxot ; and Agathiasgives a strangely romantic 
account of the Franks, whom he extols for theircon- 
formity to Roman laws, ttoXiteio uj tu -iroXXa x?<^v- 

Tai PoftaiKr], /cat vonois TOig avTOts, K. r. A. He goes 

on to commend their mutual union, and observes 
particularly that, in partitions of the kingdom, 
■which had frequently been made, they had never 
taken up arms against each other, nor polluted the 
land with civil bloodshed. One would almost be- 
lieve him ironical. 

* Gregory of Tours makes a very rhetorical story 
of this famous vow, which, though we cannot 
disprove, it may be permitted to suspect. — L. ii., 
c. 30. 

t Hist, de Languedoc, par Vich et Vaissette, 
tome i., p. 238. Gibbon, c. 37. A specious objec- 
tion might be drawn from the history of the Gothic 
monarchies in Italy, as well as Gaul and Spain, 
to the great principles of religious toleration. 
These Arian sovereigns treated their Catholic sub- 
jects, it may be said, with tenderness, leaving them 
in possession of every civil privilege, and were re- 
warded for it by their defection or sedition. But, 
in answer to this, it may be observed : 1. That the 
system of persecution adopted by the Vandals in 
Africa succeeded no better ; the Catholics of that 
province having risen against them upon the land- 
ing of Belisarius : 2. That we do not know what 
insults and discouragements the Catholics of Gaul 
and Italy may have endured, especially from the 
Arian bishops, in that age of bigotry ; although the 
adfliinistralions of Alaric and Theodoric were liber- 
al and tolerant : 3. That the distinction of Arian 
and Catholic was intimately connected with that 
of Goth and Roman, of conqueror and conquered ; 
60 that it is difficult to separate the efl'ects of na- 
tional, from those of sectaiian, animosity. 



artful gratitude, and by his descendants 
Avith lavish munificence. [A. D. 507.] 
Upon the pretence of religion, he attack- 
ed Alaric, king of the Visigoths, and, by 
one great victory near Poitiers overthrow- 
ing their empire in Gaul, reduced them 
to the maritime province of Septimania, 
a narrow strip of coast between the Rhone 
and the Pyrenees. The exploits of Clovis 
were the reduction of certain independ- 
ent chiefs of his own tribe and family, 
who were settled in the neighbourhood 
of the Rhine.* All these he put to death 
by force or treachery ; for he Avas cast in 
the true mould of conquerors, and may 
justly be ranked among the first of his 
class, both for the splendour and the 
guiltiness of his ambition. f 

[A. D. 511.] Clovis left four sons ; one 
illegitimate, born before his His descend- 
conversion ; and three by his ants, 
queen Clotilda. These four made, it is 
said, an equal partition of his dominions ; 
which comprehended not only France, but 
the western and central parts of Germa- 
ny, besides Bavaria, and perhaps Swabia, 
which were governed by their own de- 
pendant, but hereditary, chiefs. Thierry, 
the eldest, had what was called Austra- 
sia, the eastern or German division, and 
fixed his capital at Metz ; Clodomir, at 
Orleans ; Childebert, at Paris ; and Clo- 
taire, at Soissons.J During their reigns 
the monarchy was aggrandized by the 
conquest of Burgundy. [A. D. 558.] Clo- 



* Modern historians, in enumerating these reg- 
uU, call one of them King of Mans. But it is dif- 
ficult to understand how a chieftain, independent 
of Clovis, could have been settled in that part of 
France. In fact, Gregory of Tours, our only au- 
thority, does not say that this prince, Regnomeris, 
was King of Mans, but that he was put to death in 
that city : apud Cenomannis civitatem jussu Chlo 
dovechi interfectus est. 

t The reader will be gratified with an admirable 
memoir, by the Duke de Nivernois, on the policy 
of Clovis, in the twentieth volume of the Academy 
of Inscriptions. 

t Quatuor filii regnum accipiunt, et inter se 
asqua lance dividunt. — Greg. Tur., 1. iii., c. 1. It 
would rather perplex a geographer to make an 
equal division of Clovis's empire into portions, of 
which Paris, Orleans, Metz, and Soissons should 
be the respective capitals. I apprehend, in fact, 
that Gregory's expression is not very precise. The 
kingdom of Soissons seems to have been the least 
of the four, and that of Austrasia the greatest. 
But the partitions made by these princes were ex- 
ceedingly complex ; insulated fragments of terri- 
tory, and even undivided shares of cities, being al- 
lotted to the worse provided brothers, by way of 
compensation, out of the larger kingdoms. It 
would be very diflicult to ascertain the limits of 
these minor monarchies. But the French empire 
was always considered as one, whatever might be 
the number of its inheritors ; and from accidental 
circumstances it was so frequently reunited as fuliv 
to keep up Uiis notion. 



Part 1.] 



FRANCE. 



19 



taire, the youngest brother, ultimately re- 
united all the kingdoms : but upon his 
death they were again divided among his 
four sons, and brought together a second 
time by another Clotaire [A. D. 613], the 
grandson to the first. It is a weary and 
unprofitable task to follow these changes 
in detail, through scenes of tumult and 
bloodshed, in which the eye meets with 
no sunshine, nor can rest upon any inter- 
esting spot. It would be difilcult, as 
Gibbon has justly observed, to find any- 
where more vice or less virtue. The 
names of two queens are distinguished 
even at that age for the magnitude of 
their crimes : Fredegonde, the wife of 
Chilperic, of whose atrocities none have 
doubted ; and Brunehaut, queen of Aus- 
trasia, who has met with advocates in 
modern times, less, perhaps, from any 
fair presumptions of her innocence, than 
from compassion for the cruel death 
which she underwent.* 

[A. D. 628-638.] But after Dagobert, 
son of Clotaire II., the kings of France 
Their degen- dwindled into personal insig- 
eiacy. nificance, and are generally 

treated by later historians as insensati, 
or idiots. f The whole power of the king- 
Mayors of the dom devolved upon the may- 
paiace. ors of the palacc, originally 

officers of the household, through whom 
petitions or representations were laid be- 
fore the king. The weakness of sover- 
eigns rendered this office important, and 
still greater weakness suflered it to be- 
come elective ; men of energetic talents 
and ambition united it with military com- 
mand ; and the history of France, for 
half a century, presents no names more 
conspicuous than those of Ebroin and 

* Every history will give a sufficient epitome of 
the Merovingian dynasty. The facts of these times 
are of little other importance than as they impress 
on the mind a thorough notion of the extreme 
wickedness of almost every person concerned in 
them, and consequently of the state to which soci- 
ety was reduced. But there is no advantage in 
crowding the memory with barbarian wars and as- 
sassinations. For the question about Brunehaut's 
character, who has had partisans almost as enthu- 
siastic as those of Mary of Scotland, the reader 
may consult Pasquier, Recherches de la France, 1. 
viii., or Velly, Hist, de France, tome i., on one side, 
and a dissertation by Gaillard, in the Memoirs of 
the Academy of Inscriptions, tome xxx., on the 
other. The last is unfavourabb to Brunehaut, 
and perfectly satisfactory to my judgment. 

t An ingenious attempt is made by the Abb4 
Vertot, Mem. de I'Academie, tome vi., to rescue 
these monarchs from this long-established imputa- 
tion. But the leading fact is irresistible, that all the 
royal authority was lost during their reigns. How- 
ever, the best apology seems to be, that, after the 
victories of Pepin Heristal, the Merovingian kings 
were, in effect, conquered, and their inefficiency 
was a matter of necessary submission to a master. 
B2 



Grimoald, mayors of Neustria and Aus- 
trasia, the western and eastern divisions 
of the French monarchy.* These, how- 
ever, met with violent ends ; but a moi-e 
successful usurper of the royal authority 
was Pepin Heristal, first mayor, and af- 
terward duke, of Austrasia ; who united, 
with almost an avowed sovereignty over 
that division, a paramount command over 
the French or Neustrian provinces, where 
nominal kings of the Merovingian family 
were still permitted to exist. This au- 
thority he transmitted to a more renown- 
ed hero, his son, Charles Martel, who, 
after some less important exploits, was 
called upon to encounter a new and ter- 
rible enemy. The Saracens, after sub- 
jugating Spain, had penetrated into the 
very heart of France. Charles Martel 
gained a complete victory over them be- 
tween Tours and Poitiersf [A. D. 732], 
in which 300,000 Mahometans are hyper- 
bolically asserted to have fallen. The 
reward of this victory was the province 
of Septimania, which the Saracens had 
conquered from the Visigoths. J 

Such powerful subjects were not like- 
ly to remain long contented change in the 

without the crown ; but the royal family. 



* The original kingdoms of Soissons, Paris, and 
Orleans, were consolidated into that denominated 
Neustria, to which Burgundy was generally appen- 
dant, though distinctly governed by a mayor of its 
own election. But Aqnitaine, the exact bounds of 
which I do not know, was, from the time of Dago 
bert I., separated from the rest of the monarchy, 
under a ducal dynasty, sprung from Aribert, brother 
of that monarch. 

t Tours is above seventy miles distant from Poi- 
tiers ; but I do not find that any French antiquary 
has been able to ascertain the place of this great 
battle with more precision ; which is remarkable, 
since, after so immense a slaughter, we should ex- 
pect the testimony of "grandia effossis ossa se- 
pulcris." 

The victory of Charles Martel has immortalized 
his name, and may justly be reckoned among those 
few battles of which a contrary event would have 
essentially varied the drama of the world in all 
its subsequent scenes ; with Marathon, Arbela, 
the Metaurus, Chalons, and Leipsic. Yet, do we 
not judge a little too much by the event, and fol- 
low, as usual, in the wake of fortune ? Has not 
more frequent experience condemned those who 
set the fate of empires upon a single cast, and risk 
a general battle with invaders, whose greater peril 
is in delay ? Was not this the fatal error by which 
Roderic had lost his kingdom ? Was it possible 
that the Saracens could have retained any perma- 
nent possession of France, except by means of a 
victory? And did not the contest upon the broad 
campaign of Poitou afford them a considerable 
prospect of success, which a more cautious policy 
would have withheld ? 

t This conquest was completed by Pepin in 759. 
The inhabitants preserved their liberties by treaty ; 
and Vaissette deduces from this solemn assurance 
the privileges of Langiiedoc. Hist, de Lang., tome 
i., p. 412. 



20 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 1. 



The Lombards. 



Accession of circumstances under which 
Pcpin. jj. ^yj^g transferred from the 

race of Clovis are connected with one 
of the most important revokitions in 
the history of Europe. [A. D. 752.] 
The mayor Pepin, inheriting his father 
Charles Martel's talents and ambition, 
made, in the name and Avith the con- 
sent of the nation, a solemn reference 
to the pope, Zacharias, as to the dep- 
osition of Childeric III., under whose 
nominal authority he himself was reign- 
ing. The decision was favourable ; that 
he who possessed the power, should also 
bear the title of king. The unfortunate 
Merovingian was dismissed into a con- 
vent, and the Franks, with one consent, 
raised Pepin to the throne, the founder 
of a more illustrious dynasty. In order 
to judge of the importance of this revo- 
lution to the see of Rome, as well as to 
France, we must turn our eyes upon the 
affairs of Italy. 

The dominion of the Ostrogoths was 
annihilated by the arms of Belisarius 
and Narses in the sixth cen- 
tury. But not long after- 
ward, the Lombards, a people for some 
time settled in Pannonia, not only sub- 
dued that northern part of Italy which 
has retained their name, but, extending 
themselves southward, formed the pow- 
erful dutchies of Spoleto and Benevento. 
The residence of their kings was in Pa- 
via ; but the hereditary vassals, who held 
those two dutchies, might be deemed al- 
most independent sovereigns.* The rest 
of Italy was governed by exarchs, depu- 
ted by the Greek emperors, and fixed at 
Ravenna. In Rome itself, neither the 
people, nor the bishops, who had already 
conceived in part their schemes of am- 
bition, were much inclined to endure the 
superiority of Constantinople ; yet their 
disaft'ection Avas counterbalanced by the 
inveterate hatred, as well as jealousy, 
with which they regarded the Lombards. 
But an impolitic and intemperate perse- 
cution, carried on by two or three Greek 
emperors against a favourite superstition, 
the worship of images, excited commo- 
tions throughout Italy, of which the 
Lombards took advantage, and easily 
They reduce wrested the exarchate of Ra- 
tiie evarciiate venua from the eastern em- 



of Ravenna, 



pire. [A. D. 752.] It was 
far from the design of the popes to 
see their nearest enemies so much ag- 



* The history, character, and policy of the Lom- 
bards are well treated hy Gibbon, c. 45. See, too, 
the fourth and fifth books of Giannone, and some 
papers by Gaillard in the Memoirs of the Academy 
of Inscriptions, tomes xxxii., xxxv., xlv. 



grandized; and any effectual assistance 
from the Emperor Constantine Coprony- 
mus would have kept Rome still faithful. 
But having no hope from his arms, and 
provoked by his obstinate intolerance, 
the pontiffs had recourse to France ;* 
and the service they had rendered to Pe- 
pin led to reciprocal obligations of the 
greatest magnitude. At the ^^^.^^ p 
request of Stephen II., the reconquers, and 
new king of France descend- bestows on uie 
ed from the Alps, drove the ^°^^' 
Lombards from their recent conquests, 
and conferred them upon the pope. This 
memorable donation nearly comprised the 
modern provinces of Romagna and the 
March of Ancona.f 

[A. D. 768.] The state of Italy, which 
had undergone no change for „ , 

1 . ° ■ ■ ° Charlemagne, 

nearly two centuries, was 

now rapidly verging to a great revolu- 
tion. Under the shadow of a mighty 
name, the Greek empire had concealed 
the extent of its decline. That charm 
was now broken : and the Lombard 
kingdom, which had hitherto appeared 
the only competitor in the lists, proved 
to have lost its own energy in awaiting 
the occasion for its display. France 
was far more than a match for the pow- 
er of Italy, even if she had not been 
guided by the towering ambition and 
restless activity of the son of Pepin. 
It was almost the first exploit of Charle- 
magne, after the death of his brother 
Carloman had reunited the Prankish em- 
pire under his dominionj: [A. D. 772], 
to subjugate the kingdom of ne conquers 
Lombardy. [A. D. 774.] Nei- Lombardy; 
ther Pavia nor Verona, its most con- 
siderable cities, interposed any mate- 
rial delay to his arms ; and the chief re- 
sistance he "encountered was from the 
dukes of Friuli and Benevento, the latter 
of whom could never be brought into 
thorough subjection to the conqueror. 
Italy, however, be the cause v/hat it 
might, seems to have tempted Charle- 
magne far less than the dark forests of 

* There had been some previous overtures to 
Charles Martel, as well as to Pepin himself; the 
habitual sagacity of the court of Rome perceiving 
the growth of a new western monarchy, which 
would be, in faith and arms, their surest ally. — 
Muratori, Ann. d'llal., A. D. 741. 

t Giannone, 1. v., c. 2. 

t Carloman, younger brother of Charles, took 
the Austrasian or German provinces of the em- 
pire. The custom of partition was so fully estab- 
lished, that those wise and ambitious princes, 
Charles Martel, Pepin, and Charlemagne himself, 
did not venture to thwart the public opinion hy 
introducing primogeniture. Carloman would not 
long have stood against his brother ; who, after 
his death, usurped the inheritance of iiis two in- 
fant children. 



Part I] 



FRANCE 



21 



and Saxony. 



Germany. For neither the southern 
provinces, nor Sicily, could have with- 
stood his power, if it had been steadily 
. directed against them. Even 
parto 'pain, gpg^jj^ hardly drew so much 

of his attention, as the splendour of the 
prize might naturally have excited. He 
gained, however, a very important ac- 
cession to his empire, by conquering 
from the Saracens the territory contain- 
ed between the Pyrenees and the Ebro. 
This was formed into the Spanish March, 
governed by the Count of Barcelona, part 
of which, at least, must be considered as 
appertaining to France till the twelftli 
century.* 

But the most tedious and difficult 
achievement of Charlemagne 
was the reduction of the Sax- 
ons. The wars with this nation, who 
occupied nearly the modern circles of 
Westphalia and Lower Saxony, lasted for 
thirty years. Whenever the conqueror 
withdrew his armies, or even his person, 
the Saxons broke into fresh rebelUon; 
which his unparalleled rapidity of move- 
ment seldom failed to crush without de- 
lay. From such perseverance on either 
side, destruction of the weaker could 
alone result. A large colony of Saxons 
were finally transplanted into Flanders 
and Brabant, countries hitherto ill-peo- 
pled, in which their descendants pre- 
served the same unconquerable spirit of 
resistance to oppression. Many fled to 
the kingdoms of Scandinavia, and, mm- 
gling with the Northmen, who were just 
preparing to run their memorable career, 
revenged upon the children and subjects 
of Charlemagne the devastation of Sax- 
ony. The remnant embraced Christi- 
anity, their aversion to which had been 
the chief cause of their rebellions, and 
acknowledged the sovereignty of Char- 
lemagne ; a submission, which even Witi- 
kind, the second Arminius of Germany, 
after such irresistible conviction of her 
destiny, did not disdain to make. But 
they retained, in the main, their own 
laws; they were governed by a duke of 
their own nation, if not of their own 
election ; and for many ages they were 



* The counts of Barcelona always acknowl- 
edged the feudal superiority of the kings of France, 
till some time after their own title had been mer- 
ged in that of kings of Aragon. In 1180, legal in- 
struments executed in Catalonia ceased to be da- 
ted by the year of the King of France ; and as 
there certainly remained no other mark of depend- 
ance, the separation of the principality may be 
referred to that year. But the rights of the French 
crown over it were finally ceded by Louis IX., in 
1258.— De Marca, Marca Hispanica, p. 514. Art 
de verifier les Dates t. li., p. 291. 



distinguished by their original character 
among the nations of Germany. 

The successes of Charlemagne on the 
eastern frontier of his empire against the 
Sclavonians of Bohemia, and Huns or 
Avars of Pannonia, though obtained with 
less cost, were hardly less eminent. In 
all his wars, the newly-conquered na- 
tions, or those whom feir had made de- 
pendant allies, were emj loyed to subju- 
gate their neighbours ; and the incessant 
waste of fatigue and the sword was sup- 
plied by a fresh population 
that swelled the expanding S'immons'"^ 
circle of dominion. I do not 
know that the limits of the new western 
empire are very exactly defined by con- 
temporary writers, nor would it be easy 
to appreciate the degree )f subjection in 
which the Sclavonian tnoes were held. 
As an organized mass of provinces, regu- 
larly governed by imperial officers, it 
seems to have been nearly bounded, in 
Germany, by the Elbe, the Saale, the Bo- 
hemian mountains, and a line drawn from 
thence crossing the Danube above Vien 
na, and prolonged to the Gulf of Istria 
Part of Dalmatia was comprised in the 
dutchy of Friuh. In Italy, the empire 
extended not much beyond the modern 
frontier of Naples, if we exclude, as was 
the fact, the dutchy of Benevento from 
any thing more than a titular subjection. 
The Spanish boundary, as has been said 
already, was the Ebro.* 

[A. D. 800.] A seal was put to the glo- 
ry of Charlemagne, when Leo „;, Corona- 
Ill., in the name of the Ro- nonasempe- 
man people, placed upon his '■°''- 
head the imperial crown. His father, 
Pepin, had borne the title of patrician, 
and he had himself exercised, with that 
title, a regular sovereignty over Rome.f 



* I follow in this the map of Koch, in his Ta- 
bleau des Revolutions de I'Europe, torKe i. That 
of Vaugondy, Paris, 1752, includes the dependant 
Sclavonic tribes, and carries the limit of the em- 
pire to the Oder and frontiers of Poland. The au- 
thors of L'Art de verifier les Dates extend it to the 
Raab. It would require a longexammation to give 
a precise statement. 

t The patricians of the lower empire were gov- 
ernors sent from Constantinople to the provinces. 
Rome had long been accustomed to their name 
and power. The subjection of the Romans, both 
clergy and laity, to Charlemagne, as well before as 
after he bore the imperial name, seems to be estab- 
lished. — See Dissertation Historique, par Le Blanc, 
subjoined to his Traite des Monnoyes de France, 
p. is, and St. Marc, Abrfge Chronologique de 
I'Histoire de I'ltalie, t. i. The first of these wri- 
ters does not allow that Pepin exercised any author- 
ity at Rome. A good deal of obscurity rests over its 
internal government for near fifty years ; but there 
is some reason to believe that the nominal sover- 
eignty of the Greek emperors was not entirely ab- 
rogated.— Muratori, Annali d'ltalia, ad ann. 772. 



22 



EUROPE DURING THE MIDDLE AGES. 



[Chap, i 



Money was coined in his name, and an 
oath of fideUty was taken by the clergy 
and people. But the appellation of em- 
peror seemed to place his authority over 
all his subjects on anew footing. It was 
full of high and indefinite pretension, 
tending to overshadow the free election 
of the Franks by a fictitious descent from 
Augustus. A fresh oath of fidelity to him 
as emperor was demanded from his sub- 
jects. His own discretion, however, pre- 
vented him from affecting those more 
despotic prerogatives, which the imperial 
name might still be supposed to convey. 
In analyzing the characters of he- 
roes, it is hardly possible to separate 
„ , altogether the share of for- 

HiS character. . ° ^ .■ • „ rr'i,„ 

tune from their own. The 
epoch made by Charlemagne in the his- 
tory of the world, the illustrious families 
which prided themselves in him as their 
progenitor, the very legions of romance, 
which are full of his fabulous exploits, 
have cast a lustre around his head, and 
testify the greatness that has imbodied 
itself in his name. None indeed of Char- 
lemagne's wars can be compared with 
the Saracenic victory of Charles Martel; 
but that was a contest for freedom, his 
for conquest ; and fame is more partial 
to successful aggression than to patriotic 
resistance. As a scholar, his acquisitions 
were probably little superior to those of 
his unrespected son ; and in several points 
of view the glory of Charlemagne might 
be extenuated by an analytical dissec- 
tion.* But, rejecting a mode of judging 
equally uncandid and fallacious, we shall 
find that he possessed in every thing 
that grandeur of conception which dis- 
tinguishes extraordinary minds. Like 
Alexander, he seemed bom for universal 
innovation: in a hfe restlessly active, 
we see him reforming the coinage, and 
establishing the legal divisions of money ; 

St. Marc, t. i., p. 356, 372. A mosaic, still extant 
in the Lateran palace, represents our Saviour giv- 
ing the keys to St. Peter with one hand, and with 
the other a standard to a crowned prince, bearing 
the inscription, Constantine V. But Constanline 
v. did not begin to reign till 780; and if this piece 
of workmanship was made under Leo HI., as the 
authors of L'Art de verifier les Dates imagine, it 
could not be earlier than 795.— T. i., p. 262. Mura- 
tori, ad ann. 798. However this may be, there can 
be no question that a considerable share of juris- 
diction and authority was practically exercised by 
the popes during this period.— Vid. Murat., ad ann. 
789. 

* Eginhard attests his ready eloquence, his per- 
fect mastery of Latin, his knowledge of Greek, so 
far as to read it, his acquisitions in logic, grammar, 
rhetoric, and astronomy. But the anonymous au- 
thor of the life of Louis the Debonair attributes 
most of these accomplishments to that unfortu- 
nate prince 



gathering about him the learned of every 
country ; founding schools, and collect- 
ing libraries ; interfering, but with the 
tone of a king, in religious controversies; 
aiming, though prematurely, at the for- 
mation of a naval force ; attempting, for 
the sake of commerce, the magnificent 
enterprise of uniting the Rhine and Dan- 
ube ;* and meditating to mould the dis- 
cordant codes of Roman and barbarian 
laws into a uniform system. 

The great qualities of Charlemagne 
were indeed alloyed by the vices of a 
barbarian and a conqueror. Nine wives, 
whom he divorced with very little cere- 
mony, attest the license of his private 
life, which his temperance and frugality 
can hardly be said to redeem. f Unspa- 
ring of blood, though not constitution- 
ally cruel, and wholly indifierent to the 
means which his ambition prescribed, he 
beheaded in one day four thousand Sax- 
ons ; an act of atrocious butchery, after 
which his persecuting edicts, pronoun- 
cing the pain of death against those who 
refused baptism, or even who ate flesh 
during Lent, seem scarcely worthy of 
notice. This union of barbarous ferocity 
with elevated views of national improve- 
ment, might suggest the parallel of Peter 
the Great. But the degrading habits and 
brute violence of the Muscovite place 
him at an immense distance from the re 
storer of the empire. 

A strong sympathy for intellectual ex- 
cellence was the leading characteristic of 
Charlemagne, and this undoubtedly bias- 
ed him in the chief political error of his 
conduct, that oi encouraging the power 
and pretensions of the hierarchy. But, 
perhaps, his greatest eulogy is written in 
the disgraces of succeeding times, and 
the miseries of Europe. He stands alone 
like a beacon upon a waste, or a rock in 
the broad ocean. His sceptre was as 
the bow of Ulysses, which could not be 
drawn by any weaker hand. In the dark 
ages of European history, the reign of 
Charlemagne aflbrds a solitary resting- 
place between two long periods of turbu- 
lence and ignominy, deriving the advan- 



* See an essay upon this project in the Memoirs 
of the Academy of Inscriptions, tome xviii. The 
rivers which were designed to form the links of 
this j\inction were the Altmulil, the Regniiz, and 
the Maine; but their want of depth, and the spon- 
giness of the soil, appear to present insuperable 
impediments to its completion. 

t I apprehend that there is no foundation for the 
charge of an incestuous passion for his daughters, 
which Voltaire calls ime foiblesse. The error 
seems to have originated in a misinterpreted pas- 
sage of Eginhard. These ladies, indeed, were far 
from being models of virtue, and their lives brought 
scandal upon the royal palace. 



Part I.] 



FRANCE. 



23 



tages of contrast both from that of the 
preceding dynasty, and of a posterity for 
whom he had formed an empire which 
they were unworthy and unequal to main- 
tain.* 

[A. D. 814.] Pepin, the eldest son of 
I-ouis the Charlemagne, died before him, 
Debonair, leaving a natural son, named 
Bernard.! Even if he had been legit- 
imate, the right of representation was 
not at all estabhshed during these ages ; 
indeed, the general prejudice seems to 
have inclined against it. Uernard, there- 
fore, kept only the kingdom of Italy, 
which had been transferred to his father ; 
while Louis, the younger son of Charle- 
magne, inherited the empire. [A. U. 
817.] But, in a short time, Bernard, hav- 
ing attempted a rebellion against his un- 
cle, was sentenced to lose his eyes, which 
occasioned his death ; a cruelty more 
agreeable to the prevailing tone of man- 
ners, than to the character of Louis, who 
bitterly reproached himself for the sever- 
ity he had been persuaded to use. 

Under this prince, called by the Italians 
the Pious, and by the French the Debonair, 
or Good-natured,J the mighty structure 
of his father's power began rapidly to de- 
cay. I do not know that Louis deserves 
so much contempt as he has undergone ; 
but historians have in general more in- 
dulgence for splendid crimes, than for 
the weaknesses of virtue. There was no 
defect in Louis's understanding or cour- 
age ; he was accomplished in martial ex- 
ercises, and in all the learning which an 
education, excellent for that age, could 
supply. No one was ever more anxious 
to reform the abuses of administration ; 
and whoever compares his capitularies 
with those of Charlemagne, will perceive 
that, as a legislator, he was even superior 
to his father. The fault lay entirely in 
his heart ; and this fault was nothing but 
a temper too soft, and a conscience too 
strict. 4 It is not wonderful that the em- 



*■ The life of Charlemagne, by Gaillard, without 
being made perhaps so interesting as it ought to 
have been, presents an adequate view both of his 
actions and character.— Schmidt, Hist, des AUe- 
mands, tome ii., appears to me a superior writer. 

t A contemporary author, Thegan, ap. Muratori, 
A. 1). 810, asserts that Bernard was born of a con- 
cubuie. I do not know why modern historians 
represent it otherwise. 

t These names, as a French writer observes, 
meant the same thing. Pius had, even in good 
Latui, the sense of miiis, meek, forbearing, or what 
the French call debonair. — iSynonymesde Rouband, 
tome i., p. 257. Our English word debonair is 
hardly used in the same sense, if indeed it can be 
called an English word; but 1 have not altered 
Louis's appellation, by which he is so well known. 

ij Sichmidt, Hist, des Allemands, tome ii., has 
done moie justice than other liistorians to Louis's 



pire should have been speedily dissolved • 
a succession of such men as ohj^j-j^^g |\iar • 
tel, Pepin, and Charlemagne, cou-.j ^Iq^q 
have preserved its integrity ; but the ni^,, 
fortunes of Louis and his people were 
immediately owing to the following er- 
rors of his conduct. 

[A. D. 817.] Soon after his acces- 
sion, Louis thought fit to asso- nig misfor- 
ciate his eldest son Lothaire to tunes and 
the empire, and to confer the ♦^'■™'"''- 
provinces of Bavaria and Aquitaine, as 
subordinate kingdoms, upon the two 
younger, Louis and Pepin. The step 
was, in appearance, conformable to his 
father's policy, who had acted towards 
himself in a similar manner. But such 
measures are not subject to general rules, 
and exact a careful regard to characters 
and circumstances. I'he principle, how- 
ever, which regulated this division, was 
learned from Charlemagne,* and could 
alone, if strictly pursued, have given uni- 
ty and permanence to the empire. The 
elder brother was to preserve his superi- 
ority over the others, so that they should 
neither make peace nor war, nor even 
give answer to ambassadors, without his 
consent. Upon the death of either, no 
further partition was to be made ; but 
whichever of his children might become 
the popular choice, was to inherit the 
whole kingdom, under the same superior- 
ity of the head of the family.f This com- 
pact was, from the beginning, disliked by 
the younger brothers ; and an event, upon 
which Louis does not seem to have cal- 
culated, soon disgusted his colleague Lo- 
thaire. Judith of Bavaria, the emperor's 
second wife, an ambitious woman, bore 
him a son, by name Charles, whom both 
parents were naturally anxious to place 
on an equal footing with his brothers 
But this could only be done at the ex- 
pense of Lothaire, who was ill-disposed 
to see his empire still further dismember- 
ed for this child of a second bed. Louis 
passed his life in a struggle with three 
undutiful sons, who abused his paternal 
kindness by constant rebellions. 

These were rendered more formidable 
by the concurrence of a different class of 



character. Vaissette attests the goodness of his 
government in Aquitaine, which he held as a sub- 
ordinate kingdom during his father's lite. It ex- 
tended from the Loire to the Ebro, so that the trust 
was not contemptible. — Hist, de Languedoc, tome 
i., p. 4*6. 

* Charlemagne had made a prospective arrange- 
ment in 80G, the conditions of which are nearly the 
same as those of Louis ; but the death of his two 
elder sons, Charles and Pepin, prevented its taking 
effect. — Lialuz. Capitularia, [). 441. 

t Baluzii Capitularia, tome i., p. 575. 



24 



EUROPE DURING THE MIDDLE AGES. 



[Chap. l. 



enemies, whom it Jiad been another error 
of the empc^f to provoke. Charlemagne 
had ass"ffi6^ ^ thorough control and su- 
premacy over the clergy; and his son 
was perhaps still more vigilant in chasti- 
sing their irregularities, and reforming 
their rules of discipline. But to this, 
which they had been compelled to bear 
at the hands of the first, it was not equal- 
ly easy for the second to obtain their sub- 
mission. Louis, therefore, drew on him- 
self the inveterate enmity of men, who 
united with the turbulence of martial 
nobles, a skill in managing those engines 
of offence which were pecuhar to their 
order, and to which the implicit devotion 
of his character laid him very open. Yet, 
after many vicissitudes of fortune, and 
many days of ignominy, his wishes were 
eventually accomplished. [A. D. 840.] 
Charles, his youngest son, sur- 
ThfempL"^ named the Bald, obtained, up- 
among his ou his death, most part of 
L^h re France, while Germany fell to 
Louis, and the share of Louis, and the 
Charles the rest of the imperial dominions, 
^*''^" with the title, to the eldest, 

Lothaire. [A. D. 847.] This partition 
was the result of a sanguinary, though 
short, contest ; and it gave a fatal blow 
to the empire of the Franks. For the 
treaty of Mersen, in 847, abrogated the 
sovereignty that had been attached to 
the eldest brother and to the imperial 
name in former partitions ; each held his 
respective kingdom as an independent 
right.* 

The subsequent partitions made among 
the children of these brothers 
th^'cariovin- are of too rapid succession to 
pian family, be here related. In about 
Faf^emperor ^^"^^Y jears, the empire was 
881.' Kins of nearly reunited under Charles 
France 8»5._ the Fat, SOU of Louis of Gcr- 
Depose b/. j^-j^^jjy . j^^^ jjjg short and in- 
glorious reign ended in his deposition. 
From this time the possession of Italy 
was contested among her native prin- 
ces ; Germany fell at first to an illegit- 
imate descendant of Charlemagne, and 
rki„.„„.v,>, , ii^ a short time was entirely 

Dismember- , , ■, , • ,. ■, , , • -^ 

mem of the lost by his family ; two king- 
empire, doms, afterward united,! were 



* Baluzn Capitularia, tome ii., p. 42. Velly, 
tome ii., p. 75. The expressions of this treaty are 
perliaps equivocal ; but the subsequent conduct of 
the brothers and their family justifies the construc- 
tion of Velly, which I have followed. 

+ These kingdoms were denominated Provence 
and Transjurane Burgundy. The latter was very 
small, comprising only part of Switzerland ; but its 
second sovereign, Rodolph II., acquired by treaty 
almost the whole of the former ; and the two uni- 
ted were called the kingdom of Aries. This lasted 



formed by usurpers, out of what was 
then called Burgundy, and comprised the 
provinces between the Rhone and the 
Alps, with Tranche Comte, and great part 
of Switzerland. In France, 
the Carlovingian kings con- F^JJ^ee."*^ 
tinned for another century ; Eudes 8S7. 
but their line was interrupted l^.''^''',®^'^® 

, i.1. ..• 1, 4.1 Simple 898. 

two or three tunes by the Kobert ? 922. 
election or usurpation of a Ka'i'ii 923. 
powerful family, the counts of 93(""^LJt'haire 
Paris and Orleans, who end- 9m. louIs v. 
ed, hke the old mayors of ^f ;, •^.°""'« 

, ' , • T • .^ of Tans. 

the palace, in dispersing the 
phantoms of royalty they had profess- 
ed to serve.* Hugh Capet, the rep- 
resentative of this house, upon the 
death of Louis V. placed himself upon the 
throne ; thus founding the third and most 
permanent race of French sovereigns. 
Before this happened, the descendants of 
Charlemagne had sunk into insignifi- 
cance, and retained little more of France 
than the city of Laon. The rest of the 
kingdom had been seized by the powerful 
nobles, who, with the nominal fidelity of 
the feudal system, maintained its practi- 
cal independence and rebellious spirit. 

These were times of great misery 10 
the people, and the worst, per- 
haps, that Europe has ever ^^^^^iJ'^ ^^^ 
known. Even under Charle- 
magne, we have abundant proofs of the 
calamities which the people sufi'ered. 
The light which shone around him was 
that of a consuming fire. The free pro- 
prietors, who had once considered them- 
selves as only called upon to resist for- 
eign invasion, were harassed with end- 
less expeditions, and dragged away to the 
Baltic Sea or the banks of the Drave. 
Many of them, as we learn from his ca- 
pitularies, became ecclesiastics to avoid 
military conscription. f But far worse 



from 933 to 1032, when Rodolph III. bequeathed 
his dominions to the Emperor Conrad II. — Art de 
verifier les Dates, tome ii., p. 427-432. 

* The family of Capet is generally admitted to 
possess the most ancient pedigree of any sovereign 
line in Europe. Its succession through males is 
unequivocally deduced from Robert the Brave, 
made governor of Anjou in 864, and father of Eu- 
des, king of France, and of Robert, who was cho- 
sen by a party in 922, though, as Charles the Sim- 
ple was still acknowledged in some provinces, it is 
uncertain whether he ought to be counted in the 
royal list. It is, moreover, highly probable that 
Robert the Brave was descended, equally through 
males, from St. Arnoul, who died in 640, and con- 
sequently nearly allied to the Carlovingian family, 
who derive their pedigree from the same head. — 
See Preuves de la Genealogiede Hughes Capet, in 
I'Art de verifier les Dates, tome i., p. 566. 

t Capitulana, A. D. 805. Whoever possessed 
three mansi of allodial property, was called upon 
for personal service, or at least to furnish a substi- 
tute. Nigellus, author of a poetical Life of Louis 



Part I.] 



FRANCE. 



25 



must have been their state under the lax 
government of succeeding times, when 
the dukes and counts, no longer checked 
by the vigorous administration of Char- 
lemagne, were at liberty to play the ty- 
rants in their several territories, of which 
they now became almost the sovereigns. 
The poorer landholders accordingly were 
forced to bow their necks to the yoke ; 
and either by compulsion, or through 
hope of being better protected, submitted 
their independent patrimonies to the feu- 
dal tenure. 

But evils still more terrible than these 
political abuses were the lot of those na- 
tions who had been subject to Charle- 
magne. They, indeed, may appear to 
us little better than ferocious barbari- 
ans : but they were exposed to the as- 
saults of tribes, in comparison of whom 
they must be deemed humane and pol- 
ished. Each frontier of the empire had 
to dread the attack of an enemy. The 
coasts of Italy were continu- 
ally alarmed by the Saracens 
of Africa, who possessed themselves of 
Sicily and Sardinia, and became masters 
of the Mediterranean Sea.* [A. D. 84G 
-849.] Though the Greek dominions in 
the south of Italy were chiefly exposed 
to them, they twice insulted and ravaged 
the territory of Rome ; nor was there any 
security even in the neighbourhood of the 
maritime Alps, where, early in the tenth 
century, they settled a piratical colony. f 

Much more formidable were the foes 
The Hun- by whom Germany was assail- 
garians. ed. The Sclavonians, a widely- 
extended people, whose language is still 
spoken upon half the surface of Europe, 
had occupied the countries of Bohemia, 
Poland, and Pannonia,| on the eastern 

I., seems to implicate Charlemagne himself in some 
of the oppressions of his reign. It was the first 
care of the former to redress those who had been 
injured in his father's time. — Recueil des Histo- 
riens, tome vi. N. B. I quote by this title the 
great collection of French historians, charters, and 
other documents illustrative of the midiUe ages, 
more commonly known by the name of its first 
editor, the Benedictine Bouquet. But as several 
learned men of that order were successively con- 
cerned in this work, not one half of which has yet 
been published, it seemed better to follow its own 
title-page. 

* These African Saracens belonged to the Agla- 
bites, a dynasty that reigned at Tunis for the whole 
of the ninth century, after throwing off the yoke 
of the Abbassite Khalifs. They were overthrown 
themselves in the next age by the Fatimites. Si- 
cily was first invaded in 827 ; but the city of Syra- 
cuse was only reduced in 878. 

t Muratori, Annali d'ltalia, ad ann. 906, et alibi. 
These Saracens of Frassineto, supposed to be be- 
tween Nice and Monaco, were extirpated by a 
Count of Provence in 972. 

t I am sensible of the awkward effect of intro- 



confines of the empire, and from the 
time of Charlemagne acknowledged its 
superiority. But at the end of the ninth 
century, a Tartarian tribe, the Hunga- 
rians, overspreading that country which 
since has borne their name, and moving 
forward like a vast wave, brought a 
dreadful reverse upon Germany. Their 
numbers were great, their ferocity un- 
tamed. They fought with light cavalry 
and light armour, trusting to their siiow- 
ers of arrows, against which the swords 
and lances of the European armies could 
not avail. The memory of Attila was 
renewed in the devastations of these 
savages, who, if they were not his com- 
patriots, resembled them both in their 
countenances and customs. [A. D. 934- 
954.] All Italy, all Germany, and the 
south of France, felt this scourge ;* till 
Henry the Fowler and Otho the Great 
drove them back by successive victo- 
ries within their own limits, where, in a 
shoi't time, they learned peaceful arts, 
adopted the religion, and followed the 
policy, of Christendom. 

If any enemies could be more de- 
structive than these Hungarians, The Nor- 
they were the pirates of the '"ans. 
north, known commonly by the name 
of Normans. The love of a predatory 
life seems to have attracted adventu- 
rers of different nations to the Scandi- 
navian seas, from wlience they infested, 
not only by maritime piracy, but contin- 
ual invasions, the northern coasts both 
of France and Germany. The causes of 
their sudden appearance are inexplicable, 
or at least could only be sought in the 
ancient traditions of Scandinavia. For, 
undoubtedly, the coasts of France and 
England were as little protected from dep- 
redations under the Merovingian kings, 
and those of the Heptarchy, as in subse- 
quent times. Yet only one instance of 
an attack from this side is recorded, and 
that before the middle of the sixth cen- 

ducing this name from a more ancient geography, 
but it saves a circumlocution still more awkward. 
Austria would convey an imperfect idea, and the 
Austrian dominions could not be named without a 
tremendous anachronism. 

* In 921 they overran Languedoc. Raymond- 
Pons, count of Toulouse, cut their army to pieces ; 
but they had previously committed such ravages, 
that the bishops of that province, writing soon af- 
terward to Pope John X., assert that scarcely any 
eminent ecclesiastics, out of a great number, were 
left alive. — Hist, de Languedoc, tome ii., p. 60. 
They penetrated into Guienne as late as 951. — 
Flodoardi Chronicon, in Recueil des Historiens, 
tome viii. In Italy they inspired such terror, that 
a mass was composed expressly deprecating this 
calamity : Ab Ungarorum nos defendas jaculis ' 
In 937 they ravaged the country as far as Bene- 
vento and Capua. — Murato'i, Ann. d'ltalia. 



26 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



tury,* till the age of Charlemagne. In 
787, the Danes, as we call those northern 
plunderers, began to infest England, 
Avhich lay most immediately open to 
their incursions. Soon afterward they 
ravaged the coasts of France. Charle- 
magne repulsed them by means of his 
fleets ; yet they pillaged a few places 
during his reign. It is said that, perceiv- 
ing one day, from a port in the Mediter- 
ranean, some Norman vessels which had 
penetrated into that sea, he shed tears, 
in anticipation of the miseries which 
awaited his empire. f In Louis's reign 
their depi-edations upon the coasts were 
more incessant, J but they did not pene- 
trate into the inland country till that of 
Charles the Bald. The wars between 
that prince and his family, which exhaust- 
ed France of her noblest blood, the in- 
subordination of the provincial govern- 
ors, even the instigation of some of 
Charles's enemies, laid all open to their 
inroads. They adopted a uniform plan 
of warfare both in France and England ; 
sailing up navigable rivers in their vessels 
of small burden, and fortifying the islands 
which they occasionally found, they made 
these intrenchments at once an asylum 
for their women and children, a reposito- 
ry for tlicir plunder, and a place of retreat 
from superior force. After pillaging a 
town, they retired to these strongholds 
or to their ships ; and it was not tdl 87:2 
that they ventured to keep possession 
of Angers, which, however, they were 
compelled to evacuate. Sixteen years 
afterward they laid siege to Paris, and 
committed the most ruinous devastations 
on the neighbouring country. As these 
Normans were unchecked by religious 
awe, the rich monasteries, which had 
stood harmless amid tlie havoc of Chris- 
tian war, were overwhelmed in the storm. 
Perhaps they may have endured some ir- 
recoverable losses of ancient learning ; 
but their complaints are of monuments 
disfigured, bones of saints and kings dis- 
persed, treasures carried away. St. 

* Greg. Turon, 1. iii., c. 3. 

t In the ninth century the Norman pirates not 
only ravaged the Balearic isles, and nearer coasts 
of the Mediterranean, Ijut even Greece. — DeMarca, 
Marca Hispanica, p. 327. 

t Nigellus, the poetical biographer of Louis, 
gives the following description of the Normans : — 

Nort quoque Francisco dicnntur nomine inarmi. 
Veloces, agiles, annigerique nimis; 
Ipse quidem popuhis late pernotus habetur, 
Lintre dapes quserit, incohtatque mare. 
Pulcher ad est facie, vultuque statuque deco- 
rus. — 1. iv. 

He goes on to tell us that they worshipped Nep- 
tune. Was it a similarity of name, or of attributes, 
that deceived him ? 



Denis redeemed its abbot from captivity 
with six hundred and eighty-five pounds 
of gold. All the chief abbeys were strip- 
ped about the same time, either by the 
enemy, or for contributions to the public 
necessity. So empoverished was the 
kingdom, that in 860 Charles the Bald 
had great difficulty in collecting three 
thousand pounds of silver, to subsidize a 
body of Normans against their country- 
men. The kings of France, too feeble 
to prevent or repel these invaders, had 
recourse to the palliative of buying peace 
at their hands, or rather precarious armis- 
tices, to M'hich reviving thirst of plunder 
soon put an end. At length Charles the 
Simple, in 918, ceded a great province, 
which they had already partly occupied, 
partly rendered desolate, and which has 
derived from them the name of Normandy. 
Ignominious as this appears, it proved no 
impolitic step. Rollo, the Norman chief, 
with all his subjects, became Christians 
and Frenchmen ; and the kingdom was 
at once relieved from a terrible enemy, 
and strengthened by a race of hardy col- 
onists.* 

'fhe accession of Hugh Capet had not 
the immediate eflfect of resto- Accession of 
ring the royal authority over ""«'' ^apet. 
P'rance. His own very extensive fief 
was now indeed united to the crown ; 
but a few great vassals occupied the re- 
mainder of the kingdom. [A. D. 987.] 
Six of these obtained, at a sub- s,ate of 
sequent time, the exclusive ap- France .n 
pellation of peers of France ; the "'^' '™®- 
Count of Flanders, whose fief stretched 
from the Scheldt to the Somme ; the 
Count of Champagne ; the Duke of Nor- 
mandy, to whom Britany did homage ; 
the Duke of Burgundy, on wliom the 
Count of Nivernois seems to have de- 
pended ; the Duke of Aquitaine, whose 
territory, though less than the ancient 
kingdom of that name, comprehended 
Poitou, Limousin, and most of Guienne, 
with the feudal superiority over the An- 
goumois, and some other central dis- 
tricts; and, lastly, the Count of Toulouse, 
who possessed Languedoc, with the small 
countries of Quercy and Rouergue, and 
the superiority over Auvergne.f Besides 

* An exceedingly good sketch of these Norman 
incursions, and of the political situation of France 
during that period, may he found in two Memoirs 
by M. Bonamy, Mem. de I'Acad. des Inscrip., tomes 
XV. and ivii. These I have chiefly followed in the 
text. 

t Auvergne changed its feudal superior twice. 
It had been subject to the Duke of Aquitaine till 
aboutlhemiddleof the tenth century. The counts 
of Toulouse then got possession of it ; but early in 
the twelfth century the counts of Auvergne agaio 



Part I.] 



FRANCE. 



27 



these six, the Duke of Gascony, not long 
afterward united with Aquitaine, the 
counts of Anjou, Ponthieu, and Verman- 
dois, the Viscount of Bourges, the lords 
of Bourbon and Coney, with one or two 
other vassals, held immediately of the last 
Carlovingian kings.* This was the aris- 
tocracy of which Hugh Capet usurped the 
direction ; for the sutfrage of no general 
assembly gave a sanction to his title. On 
the death of Louis V. he took advantage 
of the absence of Charles, duke of Lor- 
raine, who, as the deceased king's uncle, 
was nearest heir, and procured his own 
consecration at Rheims. At first he was 
by no means acknowledged in the king- 
dom ; but his contest with Charles pro- 
ving successful, the chief vassals ulti- 
mately gave at least a tacit consent to 
the usurpation, and permitted the royal 
name to descend undisputed upon his 
posterity.f But this was almost the sole 
attribute of sovereignty which the first 
kings of the third dynasty enjoyed. For 
a long period before and after the acces- 
sion of that family, France has, properly 
speaking, no national history. The char- 
acter or fortune of those who were called 
its kings, was little more important to 
the majority of the nation than that of 
foreign princes. Undoubtedly, the de- 
gree of influence which they exercised 
with respect to the vassals of 
Robert 9'J6. ^^^ crowu Varied according to 
their power and their proximity. Over 
Guienne and Toulouse, the four first" Ca- 
pets had very little authority; nor do 
they seem to have ever received assist- 
He„ryl ance from them either in civil 
1031. ' or national wars. j: With provni- 
did homage to Guienne. It is very difficult to fol- 
low the history of these fiefs. 

* The immediacy of vassals, in times so ancient, 
is open to much controversy. I have followed the 
authority of those industrious Benedictines, the 
editors of I'Art de verifier les Dates. 

t The south of France not only took no part in 
Hugh's elevation, but long refused to pay him any 
obedience, or rather to acknowledge his title, for 
obedience was wholly out of the question. The 
style of charters ran, instead of the king's name, 
Deo regnatite. rcge expectante, or absente rege terreno. 
He forced Guienne to submit about 990. But in 
Limousin they continued to acknowledge the sons 
of Charles of Lorraine till 1009.— Vaissette, Hist, 
de Lang., t. ii., p. 120, 150- Before this. Toulouse 
had refused to recognise Eudes and Raoul, two 
kings of France, who were not of the Carlovingian 
family, and even hesitated about Louis IV. and 
Lothaire, who had an hereditary right.— Idem. 

These proofs of Hugh Capet's usurpation seem 
not to be materially invalidated by a dissertation in 
the 50th volume of the Academy of Inscriptions, 
p. 553. It is not, of coarse, to be denied, that the 
northern parts of France acquiesced m his assump- 
tion of the royal title, if they did not give an express 
consefit to it. 
X I have not found any authority for supoosmg 



ces nearer to their own domains, riiiiipX. 
such as Normandy and Flanders, ^oco. 
tliey were frequently engaged in alliance 
or hostility ; but each seemed rather to 
proceed from the pohcy of independent 
states, than from the relation of a sover- 
eign towards his subjects. 

It should be remembered that when 
the fiefs of Paris and Orleans are said to 
have been reunited by Hugh Capet to 
the crown, little more is uiiderstood than 
the feudal superiority over the vassals of 
these provinces. As the kingdom of 
Charlemagne's posterity was split into a 
number of great fiefs, so each of these 
contained many barons, possessing ex- 
clusive immunities within their own ter- 
ritories, waging war at their pleasure, 
administering justice to their military 
tenants and other subjects, and free from 
all control beyond the conditions of the 
feudal compact.* At the acces- j^^^.^ ^j 
sion of Louis VL, in 1108, the 
cities of Paris, Orleans, and Bourges, 
with the immediately adjacent districts, 
formed the most considerable portion of 
the royal domain. A number of petty 
barons, with their fortified castles, in- 
tercepted the communication between 
these, and waged war against the king 
almost under the walls of his capital. 
It cost Louis a great deal of trouble to 
reduce the lords of Montlehery, and 
other places within a few miles of Paris. 
Under this prince, however, who had 
more activity than his predecessors, the 
royal authority considerably revived. 
From his reign we may date the syste- 

that the provinces south of the Loire contributed 
their assistance to the king in war, unless the 
following passage of Guliel.mus Pictaviensis be 
considered as matter of fact, and not rather as a 
rhetorical flourish. He tells us that a vast army 
was collected by Henry I. against the Duke of 
Normandy: Burgundiam, Arverniam, atque Vas- 
coniam properare videres horribiles ferro; immo 
vires tanti regni quantum in climata quatuor mundi 
patent cunctas.— Recueil des Historiens, t. xi., p. 
83. But we have the roll of the army which Louis 
VI. led against the Emperor Henry V., A. D. 1120, 
in a national war: and it was entirely composed 
of troops from Champagne, the Isle of France, the 
Orleannois, and other provinces north of the Loire. 
— Velly, t. iii., p. 62. Yet this was a sort of convo- 
cation of the ban : Rex ut eum tola Francia sequa- 
tur, invitat. Even so late as the reign of Philip 
Augustus, in a list of the knights bannerets of 
France, though those of Brit.iny, Flanders, Cham- 
pagne, and Burgundy, besides the royal domains, 
are enumerated, no mention is made ol the prov- 
inces beyond the Loire.— Du Chesne, Script. Re- 
rum Gallicarum, t. v., p. 262. 

♦ In a subsequent chapter, I shall illustrate, at 
much greater length, the circumstances of the 
French monarchy with respect to its feudal vas- 
sals. It would be inconvenient to anticipate the 
subject at present, which is rather of a legal than 
narrative cnaracter. 



28 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



malic rivaliy of the French and Eng- 
lish monarchies. Hostihties had sever- 
al times occurred between Philip I. and 
the two Williams ; but the wars that be- 
gan under Louis VI. lasted, with no long 
interruption, for three centuries and a 
half, and form, indeed, the most leading 
feature of French history during the mid- 
dle ages.* Of all the royal vassals, the 
dukes of Normandy were the proudest 
and most powerful. Though they had 
submitted to do homage, they could not 
forget that they came in originally by 
force, and that in real strength they were 
fully equal to their sovereign. Nor had 
the conquest of England any tendency 
to diminish their pretensions. f 

Louis VIL ascended the throne with 
^ . ^-. better prospects than his father. 
1.0ms vii. |.^ ^ J ^27.] He had married 

Eleanor, heiress of the great dutchy of 
Guienne. But this union, which prom- 
ised an immense accession of strength 
to the crown, was rendered unhappy 
by the levities of that princess. Re- 
pudiated by Louis, who felt rather as a 
husband than a king, Eleanor immedi- 
ately married Henry IL of England ; 
who, already inheriting Normandy from 
his mother, and Anjou from his father, 
became possessed of more than one half 
of France, and an overmatch for Louis, 
even if the great vassals of the crown 
had been always ready to maintain its 
supremacy. One might venture perhaps 
to conjecture that the sceptre of France 
would eventually have passed from the 
Capets to the Plantagenets, if the vexa- 
tious quarrel witli Becket at one time, 
and the successive rebellions fomented 
by Louis at a later period, had not em- 
barrassed the great talents and ambitious 
spirit of Henry. 

[A. D. 1180.] But the scene quite chan- 
Phiiip Au- ged when Philip Augustus, son 
gustus. of Louis VIL, came upon the 
stage. No prince comparable to him in 
systematic ambition and military enter- 
prise had reigned in France since Char- 
lemagne. From his reign the French 
monarchy dates the recovery of its lus- 
tre. He wrested from the Count of 
Flanders the Vermandois (that part of 
Picardy which borders on the Isle of 



* Velly, t. iii., p. 40. 

t The Norman historians maintain that their 
dukes did not owe any service to the King of 
France, but only simple homage, or, as it was 
called, per paragium. — Recueil des Historiens, 
t. xi.,pref.,p. 161. They certainly acted upon this 
principle ; and the manner in which they first 
came into the country is not very consistent with 
dependance. 



France and Champagne),* and, subse- 
quently, the county of Artois. But the 
most important conquests of Philip were 
obtained against the kings of England. 
Even Richard I., with all his prowess, 
lost ground in struggling against an ad- 
versary, not less active, and more pol- 
itic than himself. [A. D. 1203.] But when 
John not only took possession conquest of 
of his brother's dominions, but Nonnaudy. 
confirmed his usurpation by the mur- 
der, as was very probably surmised, of 
the heir, Philip, artfully taking advantage 
of the general indignation, summoned 
him as his vassal to the court of his 
peers. John demanded a safe conduct. 
Willingly, said Philip ; let him come un- 
molested. And return 1 inquired the Eng- 
lish envoy. If the judgment of his peers 
permit him, replied the king. By all the 
saints of France, he exclaimed, when 
farther pressed, he shall not return un- 
less acquitted. The Bishop of Ely still 
remonstrated, that the Duke of Nor- 
mandy could not come without the King 
of England ; nor would the barons of 
that country permit their sovereign to 
run the risk of death or imprisonment. 
What of that, my lord bishop^ cried 
Phihp. It is well known that my vas- 
sal, the Duke of Normandy, acquired 
England by force. But, if a subject 
obtains any accession of dignity, shall 
his paramount lord therefore lose his 
rights ]\ 

It may be doubted whether, in thus 
citing John before his court, the King of 
France did not stretch his feudal sover- 
eignty beyond its acknowledged limits. 
Arthur was certainly no immediate vas- 
sal of the crown for Britany ; and though 
he had done homage to Philip for Anjou 
and Maine, yet a subsequent treaty had 
abrogated his investiture, and confirmed 
his uncle in the possession of those prov- 
inces. | But the vigour of Philip, and the 
meanness of his adversary, cast a shade 
over all that might be novel or irregular 
in these proceedings. John, not appear- 
ing at his summons, was declared guilty 
of felony, and his fiefs confiscated. The 
execution of this sentence was not in- 



* The original counts of Vermandois were de- 
scended from Bernard, king of Italy, grandson of 
Charlemagne : but their fief passed by the dona- 
tion of Isabel, the last countess, to her husband, 
the Earl of Flanders, after her death in 1183. The 
principal towns of the Vermandois are St. Quentin 
and Peronne. — Art de verifier les Dates, t. ii., 
p. 700. 

t Mat. Paris, p. 238, edit. 1684. 

t The illegality of Philip's proceedings is well 
argued by Mably, Observations sur I'Histoire de 
France, 1. iii., c. 6. 



Part I.] 



FRANCE. 



29 



trusted to a dilatory arm. Philip poured 
his troops into Normandy, and took town 
after town, while the King of England, in- 
fatuated by his own wickedness and cow- 
ardice, made hardly an attempt at defence. 
In two years Normandy, Maine, and An- 
jou were irrecoverably lost. [A. D. 1233.] 
Poitou and Guienne resisted longer : but 
the conquest of the first was completed 
^„„ by Louis VIII., successor of 
Lou.3 vm. pj^.jjp^ ^^^ ^^^ subjection of the 

second seemed drawing near, when the 
arms of Louis were diverted to differ- 
ent, but scarcely less advantageous ob- 
jects. 

The country of I-anguedoc, subject to 
Affiiirsof the counts of Toulouse, had 
l.anguedoc. been unconnected, beyond any 
other part of France, witli the kings 
of the house of Capet. Louis VII. hav- 
ing married his sister to the reigning 
count, and travelled himself through the 
country, began to exercise some de- 
gree of authority, chiefly in confirming 
the rights of ecclesiastical bodies, who 
were vain, perhaps, of this additional 
sanction to the privileges which they al- 
ready possessed.* But the remoteness 
of their situation, with a difference in 
language and legal usages, still kept the 
people of this province apart from those 
of the north of France. 

About the middle of the twelfth centu- 
ry, certain religious opinions, which it is 
not easy, nor, for our present purpose, 
material to define, but, upon every suppo- 
sition, exceedingly adverse to those of 
the church,! began to spread over Lan- 
guedoc. Those who imbibed them have 
borne the name of Albigeois, though they 
were in no degree peculiar to the district 
of Albi. In despite of much preaching 
and some persecution, these errors made 
a continual progress; till Innocent III., 
in 1198, despatched commissaries, the 

* According to the Benedictine historians, Vich 
and Vaissette, there is no trace of any act of sover- 
eignty exercised by the kings of France in Lan- 
guedoc from 955, when Lothaire confirmed a char- 
ter of his predecessor Raoul, in favour of the Bish- 
op of Puy, till the reign of Louis VII.— (Hist, de 
Languedoc, tome ii., p. 8S.) They have published, 
however, an instrument of Louis VI. in favour 
of the same church, confirming those of former 
princes.— (Appendix, p. 473.) Neither the counts of 
Toulouse, nor any lord of the province, were pres- 
ent in a verv numerous national assembly, at the 
coronation of Philip I.— (Id., p. 200.) I do not rec- 
ollect to have ever met with the name of the Count 
of Toulouse as a subscribing witness to the char- 
ters of the first Capetian kings in the Kecueil des 
Historiens, where many are published : though 
that of the Duke of Guienne sometimes occurs. 

t For the real tenets of the Languedocian secta- 
ries, I refer to the last chapter of the present work, 
where the subject will be taken up again. 



seed of the inquisition, with ample pow- 
ers both to investigate and to chastise. 
Raymond VI., count of Toulouse, wheth- 
er inclined towards the innovators, as 
was then the theme of reproach, or, as 
is more probable, disgusted with the inso- 
lent interference of the pope and his mis- 
sionaries, provoked them to pronounce 
a sentence of excommunication against 
him. [A. D. 1208.] Though this was 
taken off, he was still suspected; and 
upon the assassination of one of the in- 
quisitors, in which Raymond had no con- 
cern, Innocent published a crusade both 
against the count and his subjects, calling 
upon the King of France, and the nobil- 
ity of that kingdom, to take up the cross, 
with all the indulgences usually held 
out as allurements to religious warfare. 
Though Philip would not interfere, a 
prodigious number of knights undertook 
this enterprise, led partly by ecclesias- 
tics, and partly by some of the first 
barons in France. It was prosecuted 
with every atrocious barbarity which su- 
perstition, the mother of crimes, could 
inspire. Languedoc, a country, for that 
age, flourishing and civilized, was laid 
waste by these desolaters ; her cities 
burnt ; her inhabitants swept away by 
fire and the sword. And this was to 
punish a fanaticism ten thousand times 
more innocent than their own, and er- 
rors which, according to the worst im- 
putations, left the laws of humanity and 
the peace of social life unimpaired.* 

The crusaders were commanded by 
Simon de INIontfort, a man, like crusade 
Cromwell, whose intrepidity, against the 
hypocrisy, and ambition, mark- ^""seo's. 
ed him for the hero of a holy war. 
The energy of such a mind, at the 
head of an army of enthusiastic war- 
riors, may well account for successes 
which then appeared miraculous. But 
Montfort was cut oft' before he could 
reaUze his ultimate object, an independ- 
ent principality ; and Raymond was able 
to bequeath the inheritance of his an- 
cestors to his son. [A. D. 1222.] Rome, 
however, was not yet appeased; upon 
some new pretence, she raised up a 
still more formidable enemy against the 
younger Raymond. Louis VIII. suffer- 

* The Albigensian war commenced with the 
storming of Bezi^res, and a massacre, wherein 
15,000 persons, or, according to some narrations, 
eO.OOO, were put to the sword. Not a living soul 
escaped, as witnesses assure us. It was here that 
a Cistertian monk, who led on the crusaders, an- 
swered the inquiry, how the Catholics were to^be 
distinguished from heretics. Kilt them all .' God 
xvilt know his own. Besides Vaissette, see Sismon- 
di, Litterature du Midi, t. i., p. 201. 



30 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 1. 



ed himself to be diverted from the con- 
quest of Guiennc, to take the cross 
against the supposed patron of heresy. 
After a short and successful war, Louis, 
dying prematurely, left the crown of 
France to a son only twelve years old. 
But the Count of Toulouse was still 
pursued, till, hopeless of safety in so 
unequal a struggle, he concluded a trea- 
y upon very hard terms. [A. D. 1229.] 
By this he ceded the greater part of 
Languedoc ; and giving his daughter in 
marriage to Alphonso, brother of Louis 
IX., confirmed to them, and to the king 
n failure of their descendants, the rever- 
sion of the rest, in exclusion of any other 
children whom he might have. Thus fell 
the ancient house of Toulouse, through 
one of those strange combinations of for- 
tune which thwart the natural course of 
human prosperity, and disappoint the 
plans of wise policy and beneficent gov- 
ernment.* 

[A. D. 1226.] The rapid progress of 
Louis IX. ™yfl power under Philip Au- 
gustus and his son had scarce- 
ly given the great vassals time to re- 
flect upon the change which it produ- 
ced in their situation. The crown, with 
which some might singly have measured 
their forces, was now an equipoise to 
their united weight. And such a union 
was hard to be accomplished among men 
not always very sagacious in policy, and 
divided by separate interests and animos- 
ities. They were not, however, insensi- 
ble to the crisis of their feudal liberties ; 
and the minority of Louis IX., guided 
only by his mother, the regent Blanche 
of Castile, seemed to offer a favourable 
opportunity for recovering their former 
situation. Some of the most considera- 
ble barons, the counts of Britany, Cham- 
pagne, and la IMarche, had, during the 
time of Louis VIII., shown an unwilhng- 
ness to push the Count of Toulouse too 
far, if they did not even keep up a se- 
cret understanding with him. They now 
broke out into open rebellion ; but the 
address of Blanche detached some from 
the league, and her firmness subdued the 
rest. For the first fifteen years of Louis's 
reign, the struggle was frequently renew- 
ed ; till repeated humiliations convinced 
the refractory that the throne was no 
longer to be shaken. A prince so feeble 
as Henry III. was unable to afford them 

* The best account of this crusade against the 
Albigeois is to be found ni the third vohinie of 
Vaissette's History of Languedoc : the Benedictine 
spirit of mildness and veracity tolerably counter- 
balancing the prejudices of orthodoxy. Velly, 
Hist, de France, t. lii., has abridged this work. 



that aid from England, which, if his 
grandfather or son had then reigned, 
might probably have lengthened these 
civil wars. 

But Louis IX. had methods of preserv- 
ing his ascendency very dif- m^ charac 
ferent from military prowess, ter. iisex- 
That excellent prince was per- '=''"*""=^s 
haps the most eminent pattern of un- 
swerving probity and Christian strict- 
ness of conscience, that ever held the 
sceptre in any country. There is a pe- 
culiar beauty in the reign of St. Louis, 
because it shows the inestimable ben- 
efit which a virtuous king may confer 
on his people, without possessing any 
distinguished genius. For nearly half a 
century that he governed France, there 
is not the smallest want of moderation 
or disinterestedness in his actions ; and 
yet he raised the influence of the mon- 
archy to a much higher point than the 
most ambitious of his predecessors. [A. 
D. 1259.] To the surprise of his own and 
later times, he restored great part of his 
conquests to Henry III., whom he might 
naturally hope to have expelled from 
France. It would indeed have been a 
tedious work to conquer Guienne, which 
was full of strong places, and the subju- 
gation of such a province might have 
alarmed the other vassals of his crown. 
But it is the privilege only of virtuous 
minds to perceive that wisdom resides in 
moderate counsels ; no sagacity ever 
taught a selfish and ambitious sovereign 
to forego the sweetness of immediate 
power. An ordinary king, in the circum- 
stances of the French monarchy, would 
have fomented, or, at least, have rejoiced 
in the dissensions which broke out among 
the principal vassals ; Louis constantly 
employed himself to reconcile them. In 
this, too, his benevolence had all the ef- 
fects of far-sighted policy. It had been 
the practice of his three last predecessors 
to interpose their mediation in behalf of 
the less powerful classes ; the clergy, the 
inferior nobility, and the inhabitants of 
chartered towns. Thus the supremacy 
of the crown became a famihar idea ; but 
the perfect integrity of St. Louis wore 
away all distrust, and accustomed even 
the most jealous feudatories to look upon 
him as their judge ajid legislator. And 
as the royal authority was hitherto shown 
only in its most amiable prerogatives, 
the dispensation of favour, and the re- 
dress of wrong, few were watchful enough 
to remark the transition of the French 
constitution from a feudal league to an 
absolute monarciiy. 

It was perhaps fortunate for the dis- 



Part I.] 



FRANCE. 



31 



play of St. Louis's virtues, that the 
throne had already been strengthened 
by the less innocent exertions of Philip 
Augustus and Louis VIII. A century 
earlier, his mild and scrupulous character, 
unsustained by great actual power, might 
not have inspired sufficient awe. But the 
crown was now grown so formidable, and 
Louis was so eminent for his firmness 
and bravery, qualities, without which 
every other virtue would have been in- 
effectual, that no one thought it safe to 
run wantonly into rebellion, while his 
disinterested administration gave no one 
a pretext for it. Hence the latter part 
of bis reign was altogether tranquil, and 
employed in watching over the public 
peace and the security of travellers ; 
administering justice personally or by 
the best counsellors ; and compiling that 
code of feudal customs, called the Estab- 
hshments of St. Louis, which is the first 
monument of legislation after the acces- 
sion of the house of Capet. Not satisfi- 
ed with the justice of his own conduct, 
Louis aimed at that act of virtue which 
is rarely practised by private men, and 
had perhaps no example among kings, 
restitution. Commissaries were appoint- 
ed to inquire what possessions had 
been unjustly annexed to the royal do- 
main during the two last reigns. These 
were restored to the proprietors, or, 
where length of time had made it diffi- 
cult to ascertain the claimant, their value 
was distributed among the poor.* 

It has been hinted already that all this 
«„^ ^„ro,..c excellence of heart in liOU- 

and defects. . ^^^ ■,■,-, 

IS IX. was not attended with 
that strength of understanding which is 
necessary, we must allow, to complete 
the usefulness of a sovereign. During 
his minority, Blanche of Castile, his mo- 
ther, had filled the office of regent with 
great courage and firmness. But, after he 
grew up to manhood, her influence seems 
to have passed the limit which gratitude 
and piety would have assigned to it ; and, 
as her temper was not very meek or pop- 
ular, exposed the king to some degree of 
contempt. He submitted even to be re- 
strained from the society of his wife 
Margaret, daughter of Raymond, count 
of Provence, a princess of great virtue 
and conjugal affection. Joinville relates a 
curious story, characteristic of Blanche's 



* Velly, tome v., p. 150. This historian has very 
properly dwelt for almost a volume on St. Louis's 
mternal administration ; it is one of the most valu- 
able parts of his work. Joinville is a real witness, 
on whom, v/hen we listen, it is impossible not to 
rely. — Collection des Memoires relatifs a I'Histoire 
de France, tome ii., pp. H0-1.'jG. 



arbitrary conduct, and sufficiently derog- 
atory to Louis.* 

But the principal weakness of this king, 
which almost effaced all the good effects 
of his virtues, was superstition. It would 
be idle to sneer at those habits of abste- 
miousness and mortification which were 
part of the religion of his age ; and, at 
the worst, were only injurious to his own 
comfort. But he had other prejudices, 
which, though they may be forgiven, 
must never be defended. No one was 
ever more impressed than St. Louis with 
a belief in the duty of exterminating all 
enemies to his own faith. With these, 
he thought no layman ought to risk him- 
self in the perilous ways of reasoning, 
but to make answer with his sword as 
stoutly as a strong arm and a fiery zeal 
could carry that argument. f Though, 
fortunately for his fame, the persecu- 
tion against the Albigeois, which had 
been the disgrace of his father's short 
reign, was at an end before he reach- 
ed manhood, he suffered a hypocritical 
monk to establish a tribunal at Paris for 
the suppression of heresy, where many 
innocent persons suffered death. 

But no events in Louis's life were more 
memorable than his two crusades, which 
lead us to look back on the nature and 
circumstances of that most singular phe- 
nomenon in European history. Though 
the crusades involved all the western 
nations of Europe, without belonging 
peculiarly to any one, yet as France was 
more distinguished than the rest in most 
of those enterprises, I shall introduce the 
subject as a sort of digression from the 
main course of French history. 

Even before the violation of Pales- 
tine by the Saracen arms, it had been 
a prevailing custom among the The cru- 
Christians of Europe to visit s^des. 
those scenes rendered interesting by 
religion, partly through delight in the 
effects of local association, partly in 
obedience to the prejudices or com- 

* Collection des Memoires, tome ii., p. 241. 

-f Aussi vous dis je, me dist le roy, que nul, si 
n'est grant clerc, et theologien parfait, ne doit dis- 
puter aux Juifs ; mais doit I'omme lay, quant 11 oit 
mesdire de la foy chretienne, defendre la chose, 
non pas seulement des paroles, mais a bonne espee 
tranchant, et en frapper les medisans et mescreans 
a travers le corps, tant qu'elle y pourra entrer. — 
Joinville, in Collection des Memoires, tome i., p. 
23. This passage, which shows a tolerable degree 
of bigotry, did not require to be strained farther 
still bv Mosheim, vol. iii., p. 273 (edit. 1803). I 
may observe by the way, that this writer, who 
sees nothing in Louis IX. except his intolerance, 
ought not to have charged him with issuing an 
edict in favour of the inquisition, in 1229, when he 
had not assumed the government. 



32 



EUROPE DURING THE MIDDLE AGES, 



[Chap. 



mands of superstition. These pilgrim- 
ages became more frequent in later times, 
in spite, perhaps in consequence, of the 
danger and hardships which attended 
them. For a while the Mahometan 
possessors of Jerusalem permitted or 
even encouraged a devotion which they 
found lucrative ; but this was interrupted 
whenever the ferocious insolence with 
which they regarded all infidels got the 
better of their rapacity. During the 
eleventh century, when, from increasing 
superstition, and some particular fancies, 
the pilgrims were more numerous than 
ever, a change took place in the govern- 
ment of Palestine, which was overrun 
by the Turkish hordes from the north. 
These barbarians treated the visiters of 
Jerusalem with still greater contumely, 
mingling with their Mahometan bigotry 
a consciousness of strength and cour- 
age, and a scorn of the Christians, whom 
they knew only by the debased natives 
of Greece and Syria, or by these humble 
and defenceless palmers. When such 
insults became known throughout Eu- 
rope, they excited a keen sensation of 
resentment among nations equally cour- 
ageous and devout ; which, though want- 
ing as yet any definite means of satisfy- 
ing itself, was ripe for whatever favoura- 
ble conjuncture might arise. 

Twenty years before the first crusade, 
Gregory VII. had projected the scheme 
of imbodying Europe in arms against 
Asia; a scheme worthy of his daring 
mind, and which, perhaps, was never for- 
gotten by Urban II., who in every thing 
loved to imitate his great predecessor.* 
This design of Gregory was founded upon 
the supplication of the Greek Emperor 
Michael, which was renewed by Alexius 
Comnenus to Urban with increased im- 
portunity. The Turks had now taken 
Nice, and threatened, from the opposite 
shore, the very walls of Constantinople. 
Every one knows whose hand held a 
torch to that inflammable mass of enthu- 
siasm that pervaded Europe ; the hermit 
of Picardy, who, roused by witnessed 
wrongs and imagined visions, journeyed 
from land to land, the apostle of a holy 
war. The preaching of Peter was pow- 
erfully seconded by Urban. [A. D. 1095.] 
In the councils of Piacenza and of Cler- 



* Gregory addressed, in 1074, a sort of encyclic 
letter to all who would defend the Christian faith, 
enforcing upon them the duty of taking up arms 
against the Saracens, who had almost come up to 
the walls of Constantinople. No mention of Pal- 
estine is made in this letter. — Labbe, Concilia, t. x., 
p. 44. St. Marc, Abr§g6 Chron. de I'Hist. de 
I'ltalie, t. iii., p. 614. 



mont, the deliverance of Jerusalem was 
eloquently recommended and exultingly 
undertaken. It is the will of God ! was 
the tumultuous cry that broke from the 
heart and lips of the assembly at Cler- 
mont ; and these words aff'ord at once 
the most obvious and most certain ex- 
planation of the leading principle of the 
crusades. Later writers, incapable of 
sympathizing with the blind fervour of 
zeal, or anxious to find a pretext for its 
effect somewhat more congenial to the 
spirit of our times, have sought political 
reasons for that which resulted only from 
predominant affections. No suggestion 
of these will, I believe, be found in con- 
temporary historians. To rescue the 
Greek empire from its imminent peril, 
and thus to secure Christendom from 
enemies who professed towards it eter- 
nal hostilit)^ might have been a legiti- 
mate and magnanimous ground of interfe- 
rence ; but it operated scarcely, or not at 
all, upon those who took the cross. In- 
deed, it argues strange ignorance of the 
eleventh century to ascribe such refine- 
ments of later times even to the princes 
of that age. The Turks were no doubt 
repelled from the neighbourhood of Con- 
stantinople by the crusaders ; but this 
was a collateral eflfect of their enterprise. 
Nor had they any disposition to serve the 
interest of the Greeks, whom they soon 
came to hate, and not entirely without 
provocation, with almost as much ani- 
mosity as the Moslems themselves. 

Every means was used to excite an ep- 
idemical phrensy ; the remission of pen- 
ance, the dispensation from those prac- 
tices of self-denial which superstition im- 
posed or suspended at pleasure, the ab- 
solution of all sins, and the assurance of 
eternal felicity. None doubted that such 
as perished in the war received immedi- 
ately the reward of martyrdom.* False 
miracles and fanatical prophecies, which 
were never so frequent, wrought up the 
enthusiasm to a still higher pitch. And 
these devotional feelings, which are usu- 
ally thwarted and balanced by other pas- 
sions, fell in with every motive that could 
influence the men of that time ; with cu- 
riosity, restlessness, the love of license, 
thirst for war, emulation, ambition. Of 
the princes who assumed the cross, some, 
probably, from the beginning speculated 
upon forming independent establishments 
in the East. In later periods, the tempo 

* Nam qui pro Christi nomine decertantes, is 
acie I'ldelium et Christiana militia dicuntur occum 
here, non solum infamis, verum et peccaminuin el 
delictorum omnimodam credimus abolitionem pro 
mereri.— Will. Tyr., 1. x., c. 20. 



Part I.] 



FRANCE. 



33 



ral benefits of undertaking a crusade un- 
doubtedly blended themselves with less 
selfish considerations. Men resorted to 
Palestine as in modern times they have 
done to the colonies, in order to redeem 
their time or repair their fortune. Thus 
Gui de Lusignan, after flying from France 
for murder, was ultimately raised to the 
throne of Jerusalem. To the more vul- 
gar class were held out inducements 
which, though absorbed in the overruling 
fanaticism of the first crusade, might be 
exceedingly eflJicacious when it began 
rather to flag. During the time that a 
crusader bore the cross, he was free from 
suit for his debts, and the interest of them 
was entirely abolished ; he was exempt- 
ed, in some instances at least, from tax- 
es, and placed under the protection of the 
church, so that he could not be im- 
pleaded in any civil court, except on 
criminal charges, or disputes relating to 
land.* 

None of the sovereigns of Europe took 
a part in the first crusade ; but many of 
their chief vassals, great part of the in- 
ferior nobility, and a countless multitude 
of the common people. The priests left 
their parishes, and the monks their cells ; 
and, though the peasantry were then in 
general bound to the soil, we find no 
check given to their emigration for this 
cause. Numbers of women and children 
swelled the crowd ; it appeared a sort of 
sacrilege to repel any one from a work 
which was considered as the manifest 
design of Providence. But if it were 
lawful to interpret the will of Providence 
by events, few undertakings have been 
more branded by its disapprobation than 
the crusades. So many crimes and so 
much misery have seldom been accumu- 
lated in so short a space as in the three 
years of the first expedition. We should 
be warranted by contemporary writers in 
stating the loss of the Christians alone 
during this period at nearly a million ; 
but, at the least computation, it must have 
exceeded half that number.f To engage 
in the crusade, and to perish in it, were 
almost synonymous. J'ew of those myr- 
iads who were mustered in the plains of 

* Otho of Frisingen, c. 35, has inserted a bull 
of Eugenius III., in 1146, containing some of these 
privileges. Others are granted by Philip Augustus 
in 1214. — Ordonnances des Rois de France, tome i. 
See also Du Cange, voc. Crncis Privilegia. 

t William of Tyre says, that at the review be- 
fore Nice there were found 600,000 of both sexes, 
exclusive of 100,000 cavalry armed in mail. — L. li., 
c. 23. But Fulk of Chartres reckons the same 
number, besides women, children, and priests. An 
immense slaughter had previously been made in 
Hungary of the rabble under Gaultier Sans-Avoir. 

c 



Nice returned to gladden their friends iu 
Europe with the story of their triumph 
at Jerusalem. Besieging alternately and 
besieged in Antioch, they drained to the 
lees the cup of misery: three hundred 
thousand sat down before that place; 
next year there remained but a sixth part 
to pursue the enterprise. But their loss- 
es were least in the field of battle ; the 
intrinsic superiority of European prow- 
ess was constantly displayed ; the angel 
of Asia, to apply the bold language of 
our poet, high and unmatchable, where 
her rival was not, became a fear ; and the 
Christian lances bore all before them in 
their shock from Nice to Antioch, Edes- 
sa and Jerusalem. [A. D. 1099.] It was 
here, where their triumph was consum- 
mated, that it was stained with the most 
atrocious massacre ; not limited to the 
hour of resistance, but renewed deliber- 
ately even after that famous penitential 
procession to the holy sepulchre, which 
might have calmed their ferocious dispo- 
sitions, if, through the misguided enthu- 
siasm of the enterprise, it had not been 
rather calculated to excite them.* 

The conquests obtained at such a price 
by the first crusade were chiefly com- 
prised in the maritime parts j^^tin con- 
of Syria. Except the state of quests in 
Edessa beyond the Euphrates,! ^^'"^• 
which, in its best days, extended over 
great part of Mesopotamia, the Latin 
possessions never reached more than 
a few leagues from the sea. Within 
the barrier of Mount Libanus, their arms 
might be feared, but their power was 
never established; and the prophet was 
still invoked in the mosques of Aleppo 
and Damascus. The principality of An- 
tioch to the north, the kingdom of Jeru- 
salem, with its feudal dependances of 
Tripoli and Tiberias, to the south, were 
assigned, the one to Boemond, a brother 
of Robert Guiscard, count of Apulia, the 
other to Godfrey of Boulogne,| whose ex- 



*The work of Mailly, entitled L'Esprit des 
Croisades, is deserving of considerable praise for 
its diligence and impartiality. It carries the his- 
tory, however, no farther than the first expedition. 
Gibbon's two chapters on the crusades, though not 
without inaccuracies, are a brilliant portion of his 
great work. The original writers are chiefly col- 
lected in two folio volumes, entitled Gesta Dei per 
Francos. Hanover, 1611. 

t Edessa was a little Christian principality, sur- 
rounded by, and tributary to, the Turks. The in- 
habitants invited Baldwin, on his progress in the 
first crusade, and he made no great scruple of sup- 
planting, the reigning prince, who indeed is repre- 
sented as a tyrant and usurper. Esprit des Croi- 
sades, t. iv., p. C2. De Guignes, Hist, des Huns, 
t. ii., pp. 135-162. 

t Godfrey never took the title of King of Jeru- 
salem, not choosing, he said, to wear a crown of 



34 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



traordinary merit had justly raised him to 
a degree of influence with tlie chief crusa- 
ders, that has been sometimes confound- 
ed with a legitimate authority.* In the 
course of a few years, Tyre, Ascalon, 
and the other cities upon the seacoast, 
were subjected by the successors of 
Godfrey on the throne of Jerusalem. But 
as their enemies had been stunned, not 
killed, by the western storm, the Latins 
were constantly molested by the Mahom- 
etans of Egypt and Syria. They were 
exposed, as the outposts of Christendom, 
with no respite and few resources. [A. D. 
Second cru- 1147.] A second crusade, in 
Bade. which the Emperor Conrad III. 

and Louis VII. of France were engaged, 
each with seventy thousand cavalry, 
made scarce any diversion; and that 
vast army wasted away in the passage 
of Natolia.f 

The decline of the Christian establish- 
ments in the East is ascribed by William 
Decline of ^f Tyre to the extreme vi- 
the Latin ciousness of their manners, to 
P"nci^iities the adoption of European arms 
^ ^ ^^ ■ {jy tj^g orientals, and to the 
union of the Mahometan principalities 
under a single chief. J Without denying 
the operation of these causes, and espe- 
cially the last, it is easy to perceive one 
more radical than all the three, the in- 
adequacy of their means of self-defence. 
The kingdom of Jerusalem was guarded 

gold in that city where his Saviour had been 
crowned with thorns. Baldwin, Godfrey's brother, 
who succeeded him within two years, entitles 
himself. Rex Hierusalem, Latinorum primus. — 
Will. Tyr., 1. ii., c. 12. 

* The heroes of the crusade are iust like those 
of romance. Godfrey is not only the wisest, but 
the strongest man in the army. Perhaps Tasso 
has lost some part of this physical superiority for 
the sake of contrasting him with the imaginary 
Rinaldo. He cleaves a Turk in twain from the 
shoulder to the haunch. A noble Arab, after the 
taking of Jerusalem, requests him to try his sword 
upon a camel, when Godfrey with ease cuts oft' 
the head. The Arab, suspecting there might be 
something peculiar in the blade, desires him to do 
the same with his sword ; and the hero obliges 
him by demoUshing a second camel. — Will. Tyr., 1. 
ix., c. 22. 

t Vertot puts the destruction in the second cru- 
sade at two hundred thousand men.— Hist, de 
Malthe, p. 129 : and from William of Tyre's lan- 
guage, there seems no reason to consider this an 
exaggeration. — L. xvi., c. 19. 

t L. xxi., c. 7. John of Vitry also mentions the 
change of weapons by the Saracens in imitation of 
the Latins, using the lances and coat of mail in- 
stead of bows and arrows, c. 92. But, according 
to a more ancient writer, part of Soliman's (the 
Kilidge Arslan of de Guignes) army in the lirst 
crusade was in armour, loricis el galeis et clypeis 
aureis valde armati. — Albertus Aquensis, 1. li., c. 
27. I may add to this a testimony of another kind 
not less decisive. In the Abbey of St. Denis, 



only, exclusive of European volunteers, 
by the feudal service of eight hundred 
and sixty-six knights, attended each by 
four archers on horseback, by a militia 
of five thousand and seventy-five burgh- 
ers, and by a conscription, in great exi- 
gencies, of the remaining population.* 
William of Tyre mentions an army of 
one thousand three hundred horse and 
fifteen thousand foot as the greatest 
which had ever been collected, and pre- 
dicts the utmost success from it if wise- 
ly conducted.! This was a little before 
the irruption of Saladin. In the last 
fatal battle Lusignan seems to have had 
somewhat a larger force. J Nothing can 
more strikingly evince the ascendency 
of Europe, than the resistance of these 
Prankish acquisitions in Syria during 
nearly two himdred years. Several of 
their victories over the Moslems were 
obtained against such disparity of num- 
bers, that they may be compared with 
whatever is most illustrious in history 
or romance.^ These perhaps were less 
due to the descendants of the first crusa- 
ders, settled in the Holy Land,|| than to 
those volunteers from Europe, whom 
martial ardour and religious zeal impel- 
led to the service. It was the penance 
commonly imposed upon men of rank 
for the most heinous crimes, to serve a 
number of years under the banner of the 
cross. Thus a perpetual supply of war- 
riors was poured in from Europe ; and in 



there were ten pictures in stained glass, repre- 
senting sieges and battles in the first crusade. 
These were made by order of Suger, the minister 
of Louis VI., and consequently in the early part 
of the twelfth century. In many of them the 
Turks are painted in coats of mail, sometimes 
even in a plated cuiras. In others they are quite 
unarmed, and in flowing robes. — Montfaucon, Moa- 
umens de la Monarchic Franqaise, t. i., pi. 50. 

* Gibbon, c. 98, note 125. Jerusalem itself was 
very thinly inhabited. For all the heathens, says 
William of Tyre, had perished in the massacre 
when the city was taken ; or, if any escaped, they 
were not allowed to return : no heathen being 
thought fit to dwell in the holy city. Baldwin in- 
vited some Arabian Christians to settle in it. 

t L. xxii., c. 27. 

t A primo introitu Latinorum in terram sanc- 
tam, says John de Vitry, nostri tot milites in uno 
proelio congregare nequiverunt. Erant enim millo 
ducenti milites loricati ; peditum autem cum ar- 
mis, arcubus et balistis circiter viginti millia, iu- 
faustee expeditioni interfuisse dicuntur. — Gesla Dei 
per Francos, p. 1118. 

() A brief summary of these victories is given by 
John of Vitry, c. 93. 

II Many of these were of a mongrel extraction, 
descended from a Frank parent on one side, and 
Syrian on the other. These were called Poulains, 
PuUani ; and were looked upon as a mean, degen 
erate race. — Du Cange ; Gloss, v., Pullani ; and 
Observations sur Joinville, in Collection des M6 
moires relatifs a I'Histoire de France, t. ii., p. 190 



' ART L] 



FRANCE 



85 



this sense, the crusades may be said to 
have lasted without intermission during 
the whole period of the Latin settle- 
ments. Of these defenders, the most re- 
nowned were the military orders of the 
Knights of the Temple and of the Hos- 
pital of St. John ;* instituted, the one in 
1124, the other in 1118, for the sole pur- 
pose of protecting the Holy Land. The 
Teutonic order, established in 1190, when 
the kingdom of Jerusalem was falling, 
soon diverted its schemes of holy war- 
fare to a very different quarter of the 
world. Large estates, as well in Pales- 
tine as throughout Europe, enriched the 
two former institutions ; but the pride, 
rapaciousness, and misconduct of both, 
especially of the Templars, seem to have 
balanced the advantages derived from 
their valour. t [A. D. 1187.] At length, 
the famous Saladin, usurping the throne 
of a feeble dynasty which had reigned in 
Egypt, broke in upon the Christians of 
Jerusalem; the king and the kingdom 
fell into his hands ; nothing remained but 
a few strong towns upon the seacoast. 

[A. D. 1189.] These misfortunes rous- 
Third cru- cd ouce more the princes of 
sade. Europe, and the third crusade 

was undertaken by three of her sover- 
eigns, the greatest in personal estima- 
tion as well as dignity ; by the Empe- 
ror Frederick Barbarossa, Philip Au- 
gustus of France, and our own Richard 
^ Cceur de Lion. But this, like the pre- 
ceding enterprise, failed of permanent ef- 
fect ; and those feats of romantic prow- 
ess, which made the name of Richard 
so famous both in Europe and Asia,f 
proved only the total inefficacy of all 
exertions in an attempt so impractica- 
ble. Palestine was never the scene of 
another crusade. [A. D. 1204.] One 
great armament was diverted to the siege 
of Constantinople; and another [A. D. 
1218] wasted in fruitless attempts upon 
Egypt. The Emperor Frederick II. after- 
ward procured the restoration of Jerusa- 
lem by the Saracens ; but the Christian 

♦ The St. John of Jenisalem was neither the 
Evangehst, nor yet the Baptist, but a certain Cyp- 
riot, surnamed the Charitable, who had been pa- 
triarch of Alexandria. 

+ See a curious instance of the misconduct and 
insolence of the Templars, in William of Tyre, 1. 
XX., c. 32. The Templars possessed nine thou- 
sand manors, and the knights of St. John nineteen 
thousand, in Europe. The latter were almost as 
much reproached as the Templars for their pride 
and avarice. — L. xviii., c. 6. 

X When a Turk's horse started at a bush, he 
•would chide him, Joinville says, with, Cuides tu 
qu'y soit le roi Richard .' Women kept their chil- 
dren quiet with the threat of bringing Richard to 
them. 

C2 



princes of Syria were unable to defend 
it, and their possessions were gradually 
reduced to the maritime towns. Acre, 
the last of these, was finally taken by 
storm in 1291 ; and its ruin closes the 
history of the Latin dominion in Syria, 
which Em-ope had already ceased to 
protect. 

The two last crusades were under- 
taken by St. Louis. [A. D. Crusades of 
1248.] In the first he was at- st. Louis, 
tended by 2800 knights and 50,000 or- 
dinary troops.* He landed at Damiet- 
ta in Egypt, for that country was now 
deemed the key of the Holy Land, and 
easily made himself master of the city. 
But, advancing up the country, he found 
natural impediments, as well as enemies, 
in his way ; the Turks assailed him with 
Greek fire, an instrument of warfare al- 
most as surprising and terrible as gun- 
powder ; he lost his brother, the Count of 
Artois, with many knights, at Massoura, 
near Cairo ; and began too late a retreat 
towards Damietta. Such calamities now 
fell upon this devoted army, as have 
scarce ever been surpassed ; hunger and 
want of every kind, aggravated by an un- 
sparing pestilence. At length the king 
was made prisoner, and very few of the 
army escaped the Turkish cimeter in 
battle or in captivity. Four hundred 
thousand livres were paid as a ransom 
for Louis. He returned to France, and 
passed near twenty years in the exercise 
of those virtues which are his best title 
to canonization. But the fatal illusions 
of superstition were still always at his 
heart ; nor did it fail to be painfully ob- 
served by his subjects, that he still kept 
the cross upon his garment. [A. D. 1270.] 
His last expedition was originally design- 
ed for Jerusalem. But he had received 
some intimation that the King of Tunis 
was desirous of embracing Christianity. 
That these intentions might be carried 
into effect, he sailed out of his way to 
the coast of Africa, and laid siege to that 
city. A fever here put an end to his life, 
sacrificed to that ruling passion which 
never would have forsaken him. But he 
had survived the spirit of the crusades ; 
the disastrous expedition to Egypt had 
cured his subjects, though not himself, of 
their folly ;t his son, after making terms 



*The Arabian writers give him 9500 knights, 
and 130,000 common soldiers. But I greatly pre- 
fer the authority of Joinville, who has twice men- 
tioned the number of knights in the text. On Gib- 
bon's authority, I put the main body at 50,000 ; but 
if Joinville has stated this, I have missed the pas- 
sage. Their vessels amounted to 1800. 

t The refusal of Joinville to accompany the king 



36 



EUROPE DURING THE MIDDLE AGES. 



Chap. I. 



with Tunis, returned to France ; the 
Christians were suffered to lose what 
they still retained in the Holy Land ; and 
though many princes in subsequent ages 
talked loudly of renewing the war, the 
promise, if it were ever sincere, was nev- 
er accomplished. 

[A. D. 1270.] Louis IX. had increased 
the royal domain by the an- 
PhUip in. jigxation of several counties and 
other less important fiefs ; but, soon af- 
ter the accession of Philip IlL (sur- 
named the Bold), it received a far more 
considerable augmentation. Alfonso, the 
late king's brother, had been invested with 
the county of Poitou, ceded by Henry 
HL, together with part of Auvergne and 
of Saintonge ; and held also, as has been 
said before, the remains of the great fief 
of Toulouse, in right of his wife Jane, 
heiress of Raymond VH. [A. D. 1271.] 
Upon his death, and that of his countess, 
which happened about the same time, 
the king entered into possession of all 
these territories. This acquisition brought 
the sovereigns of France into contact 
with new neighbours, the kings of Aragon 
and the powers of Italy. [A. D. 1285.] 
The first great and lasting foreign war 
which they carried on was that of Phil- 
ip HI. and Philip IV. against the former 
kingdom, excited by the insurrection of 
Sicily. Though effecting no change in 
the boundaries of their dominions, this 
war may be deemed a sort of epoch in 
the history of France and Spain, as well 
as in that of Italy, to which it more pe- 
culiarly belongs. 

There still remained five great and 
ancient fiefs of the French crown ; 
Philip ihe Champagne, Guienne, Flanders, 
Fair. Burgundy, and Britany. [A. D. 
1285.] But Phihp IV., usually called the 
Fair, married the heiress of the first, a 
little before his father's death ; and, al- 

in this second crusade is very memorable, and gives 
us an insight into the bad effects of both expedi- 
tions. Le Roy de France et le Roy de Navarre 
me pressoient fort de me croiser, et entreprendre 
le chemin du pelerinage de la croix. Mais je leur 
respondi, que tandis que j'avoie este oultre-mer au 
service de Dieu, que ies gens et officers du Roy de 
France, avoient trop greve et fouUe mes subjets, 
i.ant qu'ils en estoient apovris ; tellementque james 
il ne seroit, que eulx et moy ne nous en sortissons. 
Et veoie clerement, si je me mectoie au pelerinage 
de la croix, que ce seroit la totale destruction de 
mesdiz povres subjets. Depuis ouy-je dire a plu- 
sieurs, que ceux qui luy conseiUerent I'enterprinse 
de la croix, firent un trez grant mal, et peche- 
rent mortellement. Car tandis qu'il fust au roy- 
aume de France, tout son royaume vivoit en paix, 
et regnoit justice. Et incontinent qu'il en fust 
ors, tout coinmencja a decliner, et a empirer. — T. ii., 
p. 158. 
In the Fabliaux of Le Grand d'Aussy, we have 



though he governed that county in her 
name, without pretending to reunite it 
to the royal domain, it was at least, in 
a political sense, no longer a part of 
the feudal body. With some of his 
other vassals Philip used more violent 
methods. A parallel might be drawn 
between this prince and Philip Augus- 
tus. But while in ambition, violence 
of temper, and unprincipled rapacity, 
as well as in the success of their at- 
tempts to establish an abso- 
lute authority, they may be mlnrof th^e 
considered as nearly equal, French mon 
we may remark this differ- hifreignf^"" 
ence, that Phihp the Fair, who 
was destitute of military talents, gain- 
ed those ends by dissimulation which 
his predecessor had reached by force. 

The dutchy of Guienne, though some- 
what abridged of its original extent, was 
still by far the most considerable of the 
French fiefs ; even independently of its 
connexion with England.* Philip, by 
dint of perfidy, and by tlie egregious in- 
capacity of Edmund, brother of Edward 
I., contrived to obtain, and to keep for 
several years, the possession of this great 
province. [A. D. 1292.] A quarrel among 
some French and English sailors having 
provoked retaliation, till a sort of pirati- 
cal war commenced between the two 
coimtries, Edward, as Duke of Guienne, 
was summoned into the king's court to 
answer for the trespasses of his subjects. 
Upon this he despatched his brother to % 
settle terms of reconciliation, with fuller 
powers than should have been intrusted 
to so credulous a negotiator. Phihp so 
outwitted this prince, through a fictitious 
treaty, as to procure from him the surren- 
der of all the fortresses in Guienne. He 
then threw oflf the mask, and after again 

a neat poem by Rutubceuf, a writer of St. Louis's 
age, in a dialogue between a crusader and a non- 
crusader, wherein, though he gives the last word 
to the former, it is plain that he designed the oppo- 
site scale to preponderate. — T. ii., p. 163. 

* Philip was highly offended that instruments 
made in Guienne should be dated by the year of 
Edward's reign, and not of his ovCn. This almost 
sole badge of sovereignty had been preserved by 
the kings of France during all the feudal ages. A 
struggle took place about it, which is recorded in 
a curious letter from John de Greilli to Edward. 
The French court at last consented to let dates be 
thus expressed : — Actum fuit, regnante P. rege 
Francise, E. rege Anglia; tenente ducatum Aquita- 
niae. Several precedents were shown by the Eng- 
lish, where the counts of Toulouse had used the 
form, Regnante A. comite Tolosae. — Rymer, t. ii., 
p. 1083. As this is the first time that 1 quote Ry- 
mer, it may be proper to observe that my referen- 
ces are to the London edition, the paging of which 
is preserved on the margin of that printed at the 
Hague. 



Part 1. 



FRANCE. 



37 



summoning Edward to appear, pronoun- 
ced the confiscation of his fief.* This 
business is the greatest blemish in the 
pohtical character of Edward. But his 
eagerness about the acquisition of Scot- 
land rendered him less sensible to the 
danger of a possession in many respects 
more valuable ; and the spirit of resist- 
ance among the English nobility, which 
his arbitrary measures had provoked, 
broke out very opportunely for Philip [A. 
D. 1303], to thwart every effort for the 
recovery of Guienne by arms. But after 
repeated suspensions of hostilities, a trea- 
ty was finally concluded, by which Phil- 
ip restored the province, on the agree- 
ment of a marriage between his daughter 
Isabel and the heir of England. 

To this restitution he was chiefly in- 
duced by the ill success that attended his 
arms in Flanders, another of the great 
fiefs which this ambitious monarch had 
endeavoured to confiscate. We have not 
perhaps as clear evidence of the original 
injustice of his proceedings towards the 
Count of Flanders as in the case of Gui- 
enne ; but he certainly twice detained his 
person, once after drawing him on some 
pretext to his court, and again, in viola- 
tion of the faith pledged by his generals. 
The Flemings made, however, so vigor- 
ous a resistance, that Philip was unable to 
reduce that small country [A. D. 1302] ; 
and in one famous battle at Courtray, they 
discomfited a powerful army with that 
utter loss and ignominy to which the un- 
disciplined impetuosity of the French 
nobles was pre-eminently exposed. f 

Two other acquisitions of Philip the 
Fair deserve notice ; that of the counties 
of Angouleme and la Marche, upon a sen- 
tence of forfeiture (and, as it seems, a 
very harsh one) passed against the reign- 
ing count ; and that of the city of Lyons 
and its adjacent territory, which had not 
even feudally been subject to the crown 
of France for more than three hundred 
years. Lyons was the dowry of Matilda, 
daughter of Louis IV., on her marriage 
with Conrad, king of Burgundy, and was 
bequeathed with the rest of that kingdom 
by Rodolph, in 1032, to the empire. Fred- 
erick Barbarossa conferred upon the arch- 
bishop of Lyons all regalian rights over 



* In the view I have taken of this transaction, I 
have been guided by several instruments in Ry- 
iner, which leave no doubt on my mind. Velly, of 
course, represents the matter more favourably for 
Philip. 

+ The Flemings took at Courtray 4000 pair of 
gilt spurs, which were only worn by knights. 
These Velly, happily enough, compares to Hanni- 
bal's three bushels of gold rings at Cannae. 



the city, with the title of Imperial Vicar. 
France seems to have had no concern 
with it, till St. Louis was called in as a 
mediator in disputes between the chapter 
and the city, during a vacancy of the see, 
and took the exercise of jurisdiction upon 
himself for the time. Philip III. having 
been chosen arbitrator in similar circum- 
stances, insisted, before he would restore 
the jurisdiction, upon at oath of fealty 
from the new archbishop. This oath, 
which could be demanded, it seems, by 
no right but that of force, continued to be 
taken, till, in 1310, an archbishop resist- 
ing what he had thought a usurpation, the 
city was besieged by Philip IV., and the 
inhabitants not being unwilling to submit, 
was finally united to the French crown.* 
Philip the Fair left three sons, who 
successively reigned in Jrance ; Louis x, 
Louis, surnamed Hutin, Philip the ^^h. 
Long, and Charles the Fair; with a 
daughter, Isabel, married to Edward II. 
of England. Louis, the eldest, survived 
his father little more than a year, leav- 
ing one daughter, and his queen preg- 
nant. The circumstances that ensued 
require to be accurately sta- ^^^^^-^^ ^^ 
ted. Louis had possessed, in saiique-iaw. 
right of his mother, the king- p^^'^'P ^^ 
dom of Navarre, with the coun- 
ties of Champagne and Brie. Upon his 
death, Philip, his next brother, assumed 
the regency both of France and Na- 
varre ; and, not long afterward, entered 
into a treaty with Eudes, duke of Bur- 
gundy, uncle of the princess Jane, Louis's 
daughter, by which her eventful rights to 
the succession were to be regulated. It 
was agreed that, in case the queen should 
be delivered of a daughter, these two 
princesses, or the surviver of them, 
should take the grandmother's inherit- 
ance, Navarre and Champagne, on re- 
leasing all claim to the throne of France. 
But this was not to take place till their 
age of consent, when, if they should re- 
fuse to make such renunciation, their 
claim was to remain, and right to be done 
to them therein ; but, in return, the release 
made by Philip of Navarre and Cham- 
pagne was to be null. In the meantime 
he was to hold the government of France, 
Navarre, and Champagne, receiving hom- 
age of vassals in all these countries as 
governor; saving the right of a male heir 
to the late king, in the event of whose 
birth the treaty was not to take eff'ect.f 



* Velly, t. vii., p. 404. For a more precise ac- 
count of the political dependance of Lyons and its 
district, see I'Art de verifier les Dates, t. ii., p. 469. 

t Hist, de Charles le Mauvais, par Secousse, 
vol ii., p. 2. 



38 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I 



This convention was made on the 17th of 
July, 1316 ; and on the 15th of November 
the queen brought into the world a son, 
John I. (as some called him), who died in 
four days. The conditional treaty was 
now become absolute ; in spirit, at least, 
if any cavil miglit be raised about the ex- 
pression; and Philip was, by his own 
agreement, precluded from taking any 
other title than that of regent or govern- 
or, until the princess Jane should attain 
the age to concur in or disclaim the pro- 
visional contract of her uncle. Instead 
of this, however, he procured himself to 
be consecrated at Rheims ; though, on 
account of the avowed opposition of the 
Duke of Burgundy, and even of his own 
brother Charles, it was thought prudent 
to shut the gates during the ceremony, 
and to dispose guards throughout the 
town. Upon his return to Paris, an as- 
J 6 1317 s^'^bly, composed of prelates, 
^' ' ■ barons, and burgesses of that 
city, was convened, who acknowledged 
him as their lawful sovereign, and, if we 
may believe an historian, expressly de- 
clared, that a woman was incapable of 
succeeding to the crown of France.* 
The Duke of Burgundy, however, made 
a show of supporting his niece's interests, 
till, tempted by the prospect of a marriage 
with the daughter of Philip, he shamefully 
betrayed her cause, and gave up in her 
name, for an inconsiderable pension, not 
only her disputed claim to the whole 
monarchy, but her unquestionable right 
to Navarre and Champagne. f I have 
been rather minute in stating these de- 
tails, because the transaction is misrepre- 
sented by every historian, not excepting 
those who have written since the publica- 
tion of the documents which illustrate it. J 
In this contest, every way memorable, 
but especially on account of that which 
sprung out of it, the exclusion of females 
from the throne of France was first pub- 
licly discussed. The French writers 
almost unanimously concur in asserting, 

* Tunc etiam declaratum fuit, quod in regno 
Francia mulier non succedit. — Contin. Qui. Nan- 
gis, in Spicilegio d'Achery, tome iii. Ttiis monk, 
without talents, and probably without private infor- 
mation, is the sole contemporary historian of this 
Important period. He describes the assembly 
which confirmed Philip's possession of the crown ; 
quamplures proceres et regni nobiles ac magnates 
una cum plerisque prselatis et burgensibus Parisi- 
ensis civitatis. 

+ Hist, de Charles le Mauvais, t. ii., p. 6. Jane 
and her husband, the Count of Evreux, recovered 
Navarre after the death of Charles the Fair. 

t Velly, who gives several proofs of disingenu- 
ousness in this part of history, mutilates the treaty 
of the 17th of July, 1316, in order to conceal Philip 
the Long's breach of faith towards his niece. 



that such an exclusion was built upon a 
fundamental maxim of their government. 
No written law, nor even, so far as I 
know, the direct testimony of any an- 
cient writer, has been brought forward to 
confirm this position. For as to the text 
of the Salique-law, which was frequently 
quoted, and has indeed given a name to 
this exclusion of females, it can only by 
a doubtful and refined analogy be con- 
sidered as bearing any relation to the 
succession of the crown. It is certain, 
nevertheless, that, from the time of 
Clovis, no woman had ever reigned in 
France ; and although not an instance of 
a sole heiress had occurred before, yet 
some of the Merovingian kings left 
daughters, who might, if not rendered 
incapable by their sex, have shared with 
their brothers in partitions then com- 
monly made.* But, on the other hand, 
these times were gone quite out of 
memory, and France had much in the 
analogy of her existing usages to recon- 
cile her to a female reign. The crown 
resembled a great fief; and the great fiefs 
were universally capable of descending 
to women. Even at the consecration of 
Philip himself, Maud, countess of Artois, 
held the crown over his head among the 
other peers. t And it was scarcely be- 
yond the recollection of persons living, 
that Blanche had been legitimate regent 
of France during the minority of St. 
Louis. 

For these reasons, and much more from 
the provisional treaty concluded between 
Philip and the Duke of Burgundy, it may 
be fairly inferred, that the Salique-law, as 
it was called, was not so fixed a principle 
at that time as has been contended. But, 
however this may be, it received at the 
accession of Philip the Long a sanction 
which subsequent events more thorough- 
ly confirmed. Philip himself leaving only 

* The treaty of Andely, in 5S7, will be found to 
afford a very strong presumption that females were 
at that time excluded from reigning in France. 
— Greg. Turon., 1. ix. 

t The continuator of Nangis says indeed of this: 
de quo aliqui indignati fuerunt. But these were 
probably the partisans of her nephew Robert, who 
had been excluded by a judicial sentence of Philip 
IV., on the ground that the right of representation 
did not take place in Artois ; a decision considered 
by many as unjust. Robert subsequently renewed 
his appeal to the court of Philip of Valois : but, un- 
happily for himself, yielded to the temptation of 
forging documents in support of a claim which 
seems to have been at least plausible without such 
aid. This unwise dishonesty, which is not without 
parallel in more private causes, not only ruined his 
pretensions to the coimty of Artois, but produced 
a sentence of forfeiture, and even of capital punish- 
ment, against himself. — See a pretty good account 
of Robert's process in Velly t. viii., p. 262. 



Part II.] 



FRANCE. 



39 



three daughters, his brother 
Charles IV. q^^^^.^^^ mounted the throne 

[A. D. 1322]; and upon his death, the rule 
was so unquestionably established, that 
his only daughter was excluded by the 
Philip of Count of Valois, grandson of 
Vaiois. Philip the Bold. [A. D. 1328.] 
This prince first took the regency, the 
queen dowager being pregnant, and, up- 
on her giving birth to a daughter, was 
crowned king. No competitor or op- 
ponent appeared in France ; but one 
more formidable than any whom France 
could have produced, was awaiting the 
occasion to prosecute his imagined right 
with all the resources of valour and 
genius, and to carry desolation over that 
great kingdom with as little scruple as if 
he was preferring a suit before a civil tri- 
bunal. 

P'rom the moment of Charles IV.'s 
Claim of death, Edward III. of Eng- 
Edwardiii. jand buoyed himself up with 
a notion of his title to the crown of 
France, in right of his mother, Isabel, 
sister to the three last kings. We can 
have no hesitation in condemning the in- 
justice of this pretension. Whether the 
Salique-law were or were not valid, no 
advantage could be gained by Edward. 
Even if we could forget the express or 
tacit decision of all P'rance, there stood 
in his way Jane, the daughter of Louis 
X., three of Philip the Long, and one of 
Charles the Fair. Aware of this, Edward 
set up a distinction, that, although females 
were excluded from succession, the same 
rule did not apply to their male issue ; and 
thus, though his mother Isabel could not 
herself become Queen of France, she 
might transmit a title to him. But this 
was contrary to the commonest rules of 
inheritance : and if it could have been re- 
garded at all, Jane had a son, afterward 
the famous King of Navarre, who stood 
one degree nearer to the crown than Ed- 
ward. 

It is asserted in some French authori- 
ties, that Edward preferred a claim to the 
regency immediately after the decease 
of Charles the Fair, and that the States 
General, or at least the peers of France, 
adjudged that dignity to Philip de Valois. 
Whether this be true or not, it is clear 
that he entertained projects of recovering 
his right as early, though his youth and 
the embarrassed circumstances of his 
government threw insuperable obstacles 
in the way of their execution.* He did 

* Letters of Edward III., addressed to certain 
nobles and towns in the south of France, dated 
March 28, 1328, four days before the birth of 
Charles IV.'s posthumous daughter, intimate this 



liege homage therefore to Pliilip for 
Guienne, and for several years, while the 
affairs of Scotland engrossed his atten- 
tion, gave no sign of meditating a more 
magnificent enterprise. As he advanced 
in manhood, and felt the consciousness 
of his strength, his early designs grew 
mature, and produced a series of the most 
important and interesting revolutions in 
the fortunes of France. These will form 
the subject of the ensuing pages 



PART II. 

War of Edward III. in France.— Causes of his 
Success. — Civil Disturbances of France. — Peace 
of Bretigni — its Interpretation considered. — 



resolution. — Rymer, vol. iv., p. 341, et seq. But an 
instrument, dated at N.orthampton, on the 16th of 
May, is decisive : This is a procuration to the bish- 
ops of Worcester and Litchfield, to demand and 
take possession of the kingdom of Franco, "in our 
name, which kingdom has devolved and appertains 
to us as to the right heir." — P. 354. To this mis- 
sion Archbishop Stratford refers, in his vindication 
of himself from Edward's accusation of treason in 
1340 ; and informs us that the two bishops actually 
proceeded to Fiance, though without mentioning 
any further particulars. iS^ovit enim qui nihil igno- 
rat, quod cum qufestio de regno Franciae post mor- 
tem regis Caroli, fratris serenissimae matris vestrag, 
in parliamento tunc apud Northampton celebrato, 
tractata discussaque fuisset ; quodque idem regnum 
Francias ad vos hasreditario jure extiterat legitime 
devolutum ; et super hoc fuit ordinatum, quod duo 
episcopi, Wigorniensis tunc, nunc autem Wintoni- 
ensis, ac Coventriensis et Lichfeldensis in Fraii- 
ciam dirigerent gressus suos, nomineque vestro 
regnum Francia vindicarent et praedicti Philippi 
de Valesio coronationem pro viribus impedirent ; 
qui juxta ordinationem prsedictam legationem iis 
injunctam tunc assumentes, gressus suos versus 
Franciam direxerunt ; quae quidem legatio maxim- 
am guerrffi prassentis materiam ministravit.— Wil- 
kins. — Concilia, t. i., p. 664. 

There is no evidence in Rymer's Fcedera to cor- 
roborate Edward's supposed claim to the regency 
of France upon the death of Charles IV. ; and it is 
certainly suspicious, that no appointment of am- 
bassadors or procurators for this purpose should 
appear in so complete a collection of documents. 
The French historians generally assert this, upon 
the authority of the continuator of William of Nan- 
gis, a nearly contemporary, but not always well- 
informed writer. It is curious to compare the four 
chief English historians. Rapin aifirms both the 
claim to the regency, on Charles IV.'s death, and 
that to the kingdom, after the birth of his daugh- 
ter. Carte, the most exact historian we have, 
mentions the latter, and is silent as to the former. 
Hume passes over both, and intimates that Ed- 
ward did not take any steps in support of his pre- 
tensions in 1328. Henry gives the supposed trial 
of Edward's claim to the regency before the States 
General at great length, and makes no allusion to 
the other, so indisputably authenticated in Rymer. 
It is, I think, most probable, that the two bishops 
never made the formal demand of the throne as 
they were directed by their instructions. Strat- 
ford's expressions seem to imply that they did not. 



iO 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 1. 



Charles V.— Renewal of the War.— Charles VI. 
— his Minority and Insanity. — Civil Dissensions 
of the Parties of Orleans and Burgundy. — Assas- 
sination of both these Princes. — Intrigues of 
their Parties with England under Henry IV. — 
Henry V. invades France. — Treaty of Troyes. — 
State of France in the first Years of Charles VII. 
— Progress and subsequent Decline of the Eng- 
lish Arms — their E.xpulsion from France. — 
Change in the Political Constitution. — Louis XI. 
— his Character. — Leagues formed against him. 
— Charles, Duke of Burgundy — his Prosperity 
and Fall.— Louis obtains Possession of Burgun- 
dy — his Death. — Charles VIII. — Acquisition of 
Britany. 

No war had broken out in Europe, since 
War of Ed- ^^^ ^^^^ ^f the Roman Empire, 

■ward III. in SO memorable as that of Ed- 
France, ward in. and his successors 
against France, whether we consider its 
duration, its object, or the magnitude and 
variety of its events. It was a strug- 
gle of one hundred and twenty years, 
interrupted but once by a regular paci- 
fication, where the most ancient and ex- 
tensive dominion in the civilized world 
was the prize, twice lost and twice re- 
covered in the conflict, while individual 
courage was wrought up to that high 
pitch which it can seldom display since 
the regularity of modern tactics has chas- 
tised its enthusiasm, and levelled its dis- 
tinctions. There can be no occasion to 
dwell upon the events of this war, which 
are famihar to almost every reader ; it is 
rather my aim to develop and arrange 
those circumstances which, when rightly 
understood, give the clew to its various 
changes of fortune. 

France was, even in the fourteenth 
Causes of his century, a kingdom of such 
success. extent and compactness of 
figure, such population and resources, 
and filled with so spirited a nobility, 
that the very idea of subjugating it by 
a foreign force must have seemed the 
most extravagant dream of ambition.* 
Yet, in the course of about twenty years 
of war, this mighty nation was reduced 
to the lowest state of exhaustion, and dis- 
membered of considerable provinces by 
an ignominious peace. What was the 

* The pope (Benedict XII.) wrote a strong letter 
to Edward (March, 1340), dissuading him from ta- 
king the title and arms of France, and pointing out 
the impossibility of his ever succeeding. I liave 
no doubt but that this was the common opinion. 
But the Avignon popes were very subservient to 
France. Clement VI., as well as his predecessor, 
Benedict XII., threatened Edward with spiritual 
arms. — Rymer, t. v., p. 88 and 4C5. It required Ed- 
ward's spirit and steadiness to despise these men- 
aces. But the time when they were terrible to 
princes was rather passed by ; and the Holy See 
never ventured to provoke the king, who treated 
the church, throughout his reign, with admirable 
firmness and temper. 



combination of political causes which 
brought about so strange a revolution, 
and, though not realizing Edward's hopes 
to their extent, redeemed them from the 
imputation of rashness in the judgment 
of his own and succeeding ages ? 

The first advantage which Edward 
III. possessed in this contest, character of 
was derived from the splen- Edward in. 
dour of his personal charac- ^"'' '"^ ^°"- 
ter, and from the still more eminent vir- 
tues of his son. Besides prudence and 
military skill, these great princes were 
endowed with qualities peculiarly fitted 
for the times in which they lived. Chiv- 
alry was then in its zenith ; and in all the 
virtues which adorned the knightly char- 
acter, in courtesy, munificence, gallantry, 
in all delicate and magnanimous feelings, 
none were so conspicuous as Edward III. 
and the Black Prince. As later princes 
have boasted of being the best gentle- 
men, they might claim to be the prowest 
knights in Europe ; a character not quite 
dissimilar, yet of more high pretension. 
Their court was, as it were, the sun of 
that system which embraced the valour 
and nobility of the Christian world ; and 
the respect which was felt for their ex- 
cellences, while it drew many to their 
side, mitigated in all the rancour and fe- 
rociousness of hostility. This war was 
like a great tournament, where the com- 
batants fought indeed d outrance,hm with 
all the courtesy and fair play of such an 
entertainment, and almost as much for 
the honour of their ladies. In the school 
of the Edwards were formed men not in- 
ferior in any nobleness of disposition to 
their masters ; Manni, and the Captal do 
Buch, Felton, Knollys, and Calverley, 
Chandos, and Lancaster. On the French 
side, especially after Du Gueschn came 
on the stage, these had rivals almost 
equally deserving of renown. If we could 
forget, what never should be forgotten, 
the wretchedness and devastation that 
fell upon a great kingdom, too dear a 
price for the display of any heroism, we 
might count these English wars in France 
among the brightest periods in history. 

Philip of Valois and John his son show- 
ed but poorly in comparison character of 
with their illustrious enemies. PhiUpvi. 
Yet they had both considerable *"** •'°''"- 
virtues ; they were brave,* just, liberal 

* The bravery of Philip is not questioned. But 
a French historian, in order, I suppose, to enhance 
this quality, has presumed to violate truth in an 
extraordinary manner. The challenge sent by Ed- 
ward, offering to decide his claim to the kingdom 
by single' combat, is well known. Certainly it con- 
veys no imputation on the King of France to have 
declined tlus unfair proposal. But Velly has rep- 



Part II.] 



FRANCE. 



41 



and the latter, in particular, of unshaken 
fidelity to his word. But neither was be- 
loved by his subjects; the misgovern- 
ment and extortion of their predecessors 
during half a century had alienated the 
public mind, and rendered their own taxes 
and debasement of the coin intolerable. 
Philip was made by misfortune, John by 
nature, suspicious and austere ; and al- 
though their most violent acts seem never 
to have wanted absolute justice, yet they 
were so ill conducted, and of so arbitrary 
a complexion, that they greatly impaired 
the reputation, as well as interests, of 
these monarchs. In the execution of 
Clisson under Phihp, in that of the Con- 
netable d'Eu under Jolni, and still more 
in that of Harcourt, even in the imprison- 
ment of the King of Navarre, though ev- 
ery one of these might have been guilty 
of treasons, there were circumstances 
enough to exasperate the disaffected, and 
to strengthen the party of so politic a 
competitor as Edward. 

Next to the personal qualities of the 
Resources of King of England, his resour- 
the King of ces in this war must be ta- 
Engiand. j.^^ jj^f^ j^j^g accouut. It was 

after long hesitation that he assumed 
the title and arms of France, from 
which, unless upon the best terms, he 
could not recede without loss of honour.* 

resented him as accepting it, on condition that Ed- 
ward would stake the crown of England against 
that of France ; an interpolation which may be 
truly called audacious, since not a word of this is 
in Philip's letter, preserved in Rymer, which the 
historian had before his eyes, and actually quotes 
upon the occasion. — Hist, de France, t. viii., p. 382. 

* The first instrument in which Edward disal- 
lows the title of Philip, is his convention with the 
Emperor Louis of Bavaria, wherein he calls him 
nunc pro rege Francorum se gerentem. The date 
of this is August 26, 1337, yet on the 28th of the 
same month, another instrument gives him the 
title of king ; and the same occurs in subsequent 
instances. At length we have an instrument of 
procuration to the Duke of Brabant, October 7, 
1337, empowering him to take possession of the 
crown of France in the name of Edward : atten- 
dentes inclitum regnum FrancijE ad nos fore jure 
successionis legitime devolutum. Another of the 
same date appoints the said duke his vicar-general 
and lieutenant of France. The king assumed in 
this commission the title Rex Francis et Angliae ; 
in other instruments he calls himself Rex Angliae 
et Francis. It was necessary to obviate the jeal- 
ousy of the English, who did not, in that age, 
admit the precedence of France. Accordingly, 
Edward had two great seals, on which the two 
kingdoms were named in a diiferent order. But, in 
the royal arms, those of France were always in the 
first quarter, as they continued to be until the ac- 
cession of the house of Brunswick. 

Probably Edward III. would not have entered 
into the war merely on account of his claim to the 
crown. He had disputes with Philip about Gui- 
enne; and that prince had, rather unjustifiably, 
abetted Robert Bruce in Scotland. I am not in- 



In the meantime he strengthened him- 
self by alliances with the emperor, with 
the cities of Flanders, and with most of 
the princes in the Netherlands and on 
the Rhine. Yet I do not know that he 
profited much by these conventions, since 
he met with no success till the scene of 
the war was changed from the Flemish 
frontier to Normandy and Poitou. The 
troops of Hainault alone were constantly 
distinguished in his service. 

But his intrinsic strength was at home. 
England had been growing in riches since 
the wise government of his grandfather, 
Edward I., and through the market open- 
ed for her wool with the manufacturing 
towns of Flanders. She was tranquil 
within; and her northern enemy, the 
Scotch, had been defeated and quelled. 
The parliament, after some slight precau- 
tions against a very probable effect of 
Edward's conquest of France, the reduc- 
tion of their own island into a province, 
entered, as warmly as improvidently, 
into his quarrel. The people made it 
their own, and grew so intoxicated with 
the victories of this war, that for some 
centuries the injustice and folly of the 
enterprise do not seem to have struck 
the gravest of our countrymen. 

There is, indeed, ample room for na- 
tional exultation at the names Excellence of 
of Crecy, Poitiers, and Az- ihe English 
incourt. So great was the a^i'ies. 
disparity of numbers upon those famous 
days, that we cannot, with the French 
historians, attribute the discomfiture of 
their hosts merely to mistaken tactics 
and too impetuous valour. They yield- 
ed rather to that intrepid steadiness in 
danger, which had already become the 
characteristic of our English soldiers, and 
which, during four centuries, has ensured 
their superiority, whenever ignorance or 
infatuation has not led them into the 
field. But these victories, and the quali- 
ties that secured them, must chiefly be 
ascribed to the freedom of our constitu- 
tion, and to the superior condition of the 
people. Not the nobility of England, not 
the feudal tenants, won the battles of 
Crecy and Poitiers ; for these were fully 
matched in the ranks of P'rance ; but the 
yeomen, who drew the bow with strong 
and steady arms, accustomed to its use 
in their native fields, and rendered fear- 
less by personal competence and civil 
freedom. It is well known that each of 
the three great victories was due to our 
archers, who were chiefly of the middle 
class, and attached, according to the sys- 

clined to lay any material stress upon the instiga- 
tion of Robert of Artois. 



42 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



tern of that age, to the knights and 
squires who fought in heavy armour with 
the lance. Even at the battle of Poitiers, 
of which our country seems to have the 
least right to boast, since the greater 
part of the Black Prince's small army 
was composed of Gascons, the merit of 
the English bowmen is strongly attested 
by Froissart.* 

Yet the glorious termination to which 
Edward was enabled, at least for a 
Condition time, to bring the contest, was 
of f""ce rather the work of fortune than 
bauL'of of valour and prudence. Until 
Poitiers, the battle of Poitiers, he had 
made no progress towards the conquest 
of France. That country was too vast, 
and his army too small, for such a revo- 
lution. The victory of Crecy gave him 
nothing but Calais ; a post of considera- 
ble importance in war and peace, but 
rather adapted to annoy than to subjugate 
the kingdom. But at Poitiers he obtain- 
ed the greatest of prizes, by taking pris- 
oner the King of France. Not only the 
love of freedom tempted that prince to 
ransom himself by the utmost sacrifices, 
but his captivity left France defenceless, 
and seemed to annihilate the monarchy 
itself. The government was already 
odious ; a spirit was awakened in the 
people, which might seem hardly to be- 
long to the fourteenth century ; and the 
convulsions of our own time are some- 
times strongly paralleled by those which 
succeeded the battle of Poitiers. Al- 
ready the States General had established 
a fundamental principle, that no resolution 
could be passed as the opinion of the 
whole, unless each of the three orders 
concurred in its adoption.! The right of 
levying and of regulating the collection 
of taxes was recognised. But that as- 
sembly which met at Paris immediately 
after the battle, went far greater lengths 
in the reform and control of government. 
From the time of Philip the Fair, the 
abuses natural to arbitrary power had 
harassed the people. There now seem- 
ed an opportunity of redress ; and how- 
ever seditious, or even treasonable, may 
have been the motives of those who 
guided this assembly of the States, espe- 
cially the famous Marcel, it is clear that 
many of their reformations tended to lib- 
erty and the public good.| But the tu- 

* Au vray dire, les archers d'Angleterre faisoient 
a leurs gens grant avantage. Car ils tiroyent tant 
espessement, que les Frangois ne sgavoyent dequel 
coste entendre, qu'ils ne fussent consuy vis de trayt ; 
et s'avancoyent tousjours ces Anglois, et petit a 
petit enqueroyent terre. — Part I., c. 162. 

t Ordonnances des Rois de France, t. ii. 

i I must refer the reader onward to the next 



multuous scenes which passed in the 
capital, sometimes heightened into civil 
war, necessarily distracted men from the 
common defence against Edward. These 
tumults were excited, and the distraction 
increased, by Charles, king of Navarre, 
surnamed the bad, to whom the French 
writers have, not perhaps unjustly, at- 
tributed a character of unmixed and in- 
veterate malignity. He was grandson of 
Louis Hutin, by his daughter Jane, and, 
if Edward's pretence of claiming through 
females could be admitted, was a nearer 
heir to the crown ; the consciousness of 
which seems to have suggested itself to 
his depraved mind as an excuse for his 
treacheries, though he could entertain 
very little prospect of asserting the claim 
against either contending party. John 
had bestowed his daughter in marriage 
on the King of Navarre ; but he very soon 
gave a proof of his character, by procu- 
ring the assassination of the king's favour- 
ite, Charles de la Cerda. An irreconci- 
lable enmity was the natural result of this 
crime. Charles became aware that he 
had offended beyond the possibility of 
forgiveness, and that no letters of pardon, 
nor pretended reconciliation, could secure 
him from the king's resentment. Thus, 
impelled by guilt into deeper guilt, he 
entered into alliances with Edward, and 
fomented the seditious spirit of Paris, 
Eloquent and insinuating, he was the 
favourite of the people, whose grievan- 
ces he affected to pity, and with whose 
leaders he intrigued. As his paternal 
inheritance, he possessed the county of 
Evreux in Normandy. The proximity 
of this to Paris created a formidable di- 
version in favour of Edward III., and 
connected the English garrisons of the 
north with those of Poitou and Guienne. 
There is no affliction which did not 
fall upon France during this miserable 
period. A foreign enemy was in the 
heart of the kingdom, the king a prisoner, 
the capital in sedition, a treacherous 
prince of the blood in arms against the 
sovereign authority. Famine, the sure 
and terrible companion of war, for sev- 
eral years desolated the country. In 
1348, a pestilence, the most extensive 
and unsparing of which we have any 
memorial, visited France as well as the 
rest of Europe, and consummated the 
work of hunger and the sword.* The 



chapter for more information on this subject. This 
separation is inconvenient, but it arose indispensa- 
bly out of my arrangement, and prevented greater 
inconveniences. 

* A full account of the ravages made by this 
memorable plague may be found in Matteo Villa 



Part. II.] 



FRANCE. 



43 



companies of adventure, mercenary troops 
in the service of John or Edward, find- 
ing no immediate occupation after the 
truce of 1357, scattered themselves over 
the country in search of pillage. No 
force existed sufficiently powerful to 
check these robbers in their career. 
Undismayed by superstition, they com- 
pelled the pope to redeem himself in 
Avignon by the payment of forty thou- 
sand crowns.* France was the passive 
victim of their license, even after the 
pacification concluded with England, till 
some were diverted into Italy, and others 
led by Du Gueschnto the war of Castile. 
Impatient of this wretchedness, and stung 
by the insolence and luxury of their lords, 
the peasantryofseveral districts broke out 
into a dreadful insurrection. [A. D. 1358.] 
This was called the Jacquerie, from the 
cant phrase Jacques bon homme, applied 
to men of that class ; and was marked by 
all the circumstances of horror incident 
to the rising of an exasperated and unen- 
lightened populace. t 

ni, the second of that family who wrote the histo- 
ry of Florence. His brother and predecessor, John 
Villani, was himself a victim to it. The disease 
began in the Levant about 1346 ; from whence 
Italian traders brought it to Sicily, Pisa, and Ge- 
noa. In 1348 it passed the Alps and spread over 
France and Spam ; in the ne.xt year it reached 
Britam, and in 1350 laid waste Germany and other 
northern states ; lasting generally about five months 
in each country. At Florence, more than three 
out of five died. — Muratori, Script. Rerum Itali- 
carum, t. xiv., p. 12. The stories of Boccaccio's 
Decamerone, as is well known, are supposed to be 
related by a society of Florentine ladies and gen- 
tlemen retired to the country during this pesti- 
lence. 

* Froissart, p. 187. This troop of banditti was 
commanded by Arnaud de Cervole, surnamed 
I'Archipretre, from a benefice which, although a 
layman, he possessed, according to the irregularity 
of those ages. See a memoir on the life of Arnaud 
de Cervole, in the twenty-fifth volume of the Acad- 
emy of Inscriptions. 

t The second continuator of Nangis, a monk of 
no great abilities, but entitled to notice as our most 
contemporary historian, charges the nobility with 
spending the money raised upon the people by op- 
pressive taxes, in playing at dice " et alios inde- 
centes jocos." — D'Achery, Spicilegium, t. iii., p. 
1 14 (folio edition). All the miseries that followed 
the battle of Poitiers he ascribes to bad govern- 
ment and neglect of the common weal ; but espe- 
cially to the pride and luxury of the nobles. 1 am 
aware that this writer is biased in favour of the 
King of Navarre ; but he was an eyewitness of the 
people's misery, and perhaps a less exceptionable 
authority than Froissart, whose love of pageantry 
and habits of feasting in the castles of the great, 
seem to have produced some insensibility towards 
the sufferings of the lower classes. It is a painful 
circumstance, which Froissart and the continuator 
of Nangis attest, that the citizens of Calais, more 
interesting than the common heroes of history, 
were unrewarded, and begged their bread in mis- 
ery throughout France. Villaret contradicts this, 



Subdued by these misfortunes, though 
Edward had made but slight progress 
towards the conquest of the country, the 
regent of France, afterward Charles V., 
submitted to the peace of Bre- peaceof 
tigni. [A. D. 1360.] By this treaty, uretigni. 
not to mention less important articles, 
all Guienne, Gascony, Poitou, Saintonge, 
the Limousin, and the Angoumois, as 
well as Calais, and the county of Pon- 
thieu, were ceded in full sovereignty 
to Edward ; a price abundantly compen- 
sating his renunciation of the title of 
France, which was the sole concession 
stipulated in return. Every care seems 
to have been taken to make the cession of 
these provinces complete. The first six 
articles of the treaty expressly surren- 
der them to the King of England. By the 
seventh, John and his son engage to con- 
vey within a year from the ensuing 
Michaelmas all their rights over them, 
and especially those of sovereignty and 
feudal appeal. The same words are re- 
peated still more emphatically in the 
eleventh, and some other articles. The 
twelfth stipulates the change of mutual re- 
nunciations ; by John, of all right over the 
ceded countries ; by Edward, of his claim 
to the throne of France. At Calais, the 
treaty of Bretigni was renewed by John, 
who, as a prisoner, had been no party to 
the former compact, with the omission 
only of the twelfth article, respecting the 
exchange of renunciations. But that it 
was not intended to waive them by this 
omission, is abundantly manifest by in- 
struments of both the kings, in which 

on the authority of an ordinance which he has seen 
in their favour. But that was not a time when 
ordinances were very sure of execution. — Vill., t. 
ix., p. 470. I must add, that the celebrated story 
of the six citizens of Calais, which has of late been 
called in question, receives strong confirmation 
from John Villani, who died very soon afterward. 
-^L. xii., c. 96. Froissart of course wrought up the 
circumstances after his manner. In all the colour- 
ing of his history, he is as great a master as Livy ; 
and as little observant of particular truth. M. de 
Brequigny, almost the latest of those excellent 
antiquaries whose memoirs so much illustrate the 
French Academy of Inscriptions, has discussed the 
history of Calais, and particularly this remarkable 
portion of it. — Mem. de I'Acad. des Inscriptions, 
t. 1. 

Petrarch has drawn a lamentable picture of the 
state of France in 1360, when he paid a visit to 
Paris. I could not believe, he says, that this was 
the same kingdom which I had once seen so rich 
and flourishing. Nothing presented itself to my 
eyes but a fearful solitude, an extreme poverty, 
lands uncultivated, houses in ruins. Even the 
neighbourhood of Pans manifested everywhere 
marks of destruction and conflagration. The 
streets are deserted ; the roads overgrown with 
weeds : the whole is a vast solitude. — Mem. de 
Petrarque, t. iii., p. 541. 



44 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



reference is made to their future inter- 
changes at Bruges, on the feast of St. 
Andrew, 1361. And, until that time 
should arrive, Edward promises to lay 
aside the title and arms of France (an 
engagement which he strictly kept),* and 
John to act in no respect as king or su- 
zerain over the ceded provinces. Finally, 
on November 15, 1361, two commission- 
ers are appointed by Edward to receive 
the renunciations of the King of France 
at Bruges on the ensuing feast of St. An- 
drew,! and to do whatever might be mu- 
tually required by virtue of the treaty. 
These, however, seem to have been 
withheld, and the twelfth article of the 
treaty of Bretigni was never expressly 
completed. By mutual instruments, exe- 
cuted at Calais, October 24, it had been 
declared, that the sovereignty of the 
ceded provinces, as well as Edward's 
right to the crown of France, should re- 
main as before, although suspended as to 
its exercise, until the exchange of renun- 
ciations, notwithstanding any words of 
present conveyance or release in the 
treaties of Bretigni and Calais. And 
another pair of letters patent, dated 
October 26, contains the form of renun- 
ciations, which, it is mutually declared, 
should have effect by virtue of the pres- 
ent letters, in case one party should be 
ready to exchange such renunciations 
at the time and place appointed, and 
the other should make default therein. 
These instruments, executed at Calais, 
are so prolix, and so studiously envel- 
oped, as it seems, in the obscurity of 
technical language, that it is difficult to 
extract their precise intention. It ap- 
pears, nevertheless, that whichever par- 
ty was prepared to perform what was 
required of him at Bruges on November 
30, 1361, the other, then and there making 
default, would acquire not only what our 
lawyers might call an equitable title, but 
an actual vested right, by virtue of the 
provision in the letters patent of October 
26, 1360. The appointment above men- 
tioned of Edward's commissioners on 
November 15, 1361, seems to throw upon 
the French the burden of proving that 
John sent his envoys with equally full 
powers to the place of meeting, and that 
the non-interchange of renunciations was 
owing to the English government. But 
though an historian, sixty years later 
(Juvenal des Ursins), asserts that the 

* Edward gives John the title of King of France, 
in an instrument bearing date at Calais, October 
22, 1360.— Rymer, t. vi., p. 217. The treaty was 
signed October 24.— Id., p. 219. 

t Rymer, t. vi., p. 339. 



French commissioners attended at Bru- 
ges, and that those of Edward made 
default, this is certainly rendered improb- 
able, by the actual appointment of com- 
missioners made by the King of England 
on the 15th of November, by the silence 
of Charles V. after the recommencement 
of hostihties, who would have rejoiced in 
so good a ground of excuse, and by the 
language of some English instruments, 
complaining that the French renuncia- 
tions were withheld.* It is suggested by 
the French authors, that Edward was un- 
willing to execute a formal renunciation 
of his claim to the crown. But we can 
hardly suppose that, in order to evade 
this condition, which he had voluntarily 
imposed upon himself by the treaties of 
Bretigni and Calais, he would have left 
his title to the provinces ceded by those 
conventions imperfect. He certainly 
deemed it indefeisible, and acted with- 
out any complaint from the French 



* It appears that, among other alleged infrac- 
tions of the treaty, the King of France had re- 
ceived appeals from Armagnac, Albret, and other 
nobles of Aquitaine, not long after the peace. For, 
in February, 1362, a French envoy, the Count de 
Tancarville, being m England, the privy council 
presented to Edward their bill of remonstrances 
against this conduct of France ; et semble au con- 
seil le roy d'Angleterre que considere la fourme de 
la ditto paix, qui tant esioit honourable et proffita- 
ble au royaume de France eta tout chretiente, que 
la reception desdittes appellacions, n'a mie este 
bien faite, ne passes si ordenement, ne a si bon af- 
fection et amour comme il droit avoir esle faite de 
raison parmi I'effet et I'intention de la paix, et ail- 
liances afferm^es et entr'eux sernble estre moult 
prejudiciables et contraires a I'onneur et a I'estat 
du roy et de son fils le prince et de toute la maison 
d'Angleterre, et pourra estre evidente matiere de 
rebellion des subgiez, et aussi donner tres-grant 
occasion d'enfraindre la paix, si bon remede sur 
ce n'y soit mis plus hastivement. Upon the whole, 
they conclude that, if the King of France would re- 
pair this trespass, and send his renunciation of 
sovereignty, the king should send his of the title 
of France. — Martenne, Thes. Anec, t. i., p. 1487. 

Four princes of the blood, or. as they are termed, 
Seigneurs des Fleurdelys, were detained as hos- 
tages for the due execution of the treaty of Bre- 
tigni, which, from whatever pretence, was delayed 
for a considerable time. Anxious to obtain their 
liberty, they signed a treaty at London in Novem- 
ber, 1362, by which, among other provisions, it was 
stipulated that the King of France should send 
fresh letters, under his seal, conveying and releas- 
ing the territories ceded by the peace, without the 
clause contained in the former letters, retaining the 
ressort: et queen ycelles lettressoitexpressement 
compris transport de la souverainete et du ressort, 
&c. Et le roi d'Engleterre et ses enfans ferront 
semblablement autiels renonciations, sur ce q'il 
doit faire de sa partie. — Rymer, t. vi., p. 396. This 
treaty of London was never ratified by the French 
government ; but I use it as a proof that Edward 
imputed the want of mutual renunciations to 
France, and was himself ready to perform his part 
of the treaty. 



Part II.] 



FRANCE. 



45 



court, as the perfect master of those 
countries. He created his sou Prince 
of Aquitaine, with the fullest powers 
over that new principality, holding it in 
fief of the crown of England by the 
yearly rent of an ounce of gold.* And 
the court of that great prince was kept 
for several years at Bordeaux. 

I have gone something more than usual 
into detail as to these circumstances, be- 
cause a very specious account is given by 
some French historians and antiquaries, 
which tends to throw the blame of the 
rupture in 1368 upon Edward IILf Un- 
founded as was his pretension to the 
crown of France, and actuated as we 
must consider him by the most ruinous 
ambition, his character was unblemished 
by ill faith. There is no apparent cause 
to impute the ravages made in France by 
soldiers formerly in the English service 
to his instigation, nor any proof of a con- 
nexion with the King of Navarre subse- 
quently to the peace of Bretigni. But a 
good lesson may be drawn by conquerors 
from the change of fortune that befell Ed- 
ward III. A long warfare, and unex- 
ampled success, had procured for him 
some of the richest provinces of France. 
Within a short time he was entirely strip- 
ped of them, less through any particular 
misconduct, than in consequence of the 



* Rym., t. vi., p. 385-389. One clause is re- 
markable ; Edward reserves to himself the right of 
creating the province of Aquitaine into a kingdom. 
So high were the notions of this great monarch, m 
an age when the privilege of creating new king- 
doms was deemed to belong only to the pope and 
the emperor. Etiam si per nos hujusmodi pro- 
vinciaj ad regalis honoris titulum et fastigiuin im- 
posterum sublimentur ; quam erectionem lacien- 
dam per nos ex tunc specialiter reservamus. 

t Besides Villaret, and other historians, the 
reader who feels any curiosity on this subject 
may consult three memoirs in the 15th volume of 
the Academy of Inscriptions by MM. Secousse, 
Salier, and Bonamy. These distinguisJied anti- 
quaries unite, but the third with much less confi- 
dence and passion than the other two, in charging 
the omission upon Edward. The observations in 
the text will serve, I hope, to repel their argu- 
ments, which, I may be permitted to observe, no 
English writer has hitherto undertaken to answer. 
This is not said in order to assume any praise to 
myself; in fact, I have been guided, in a great 
degree, by one of the adverse counsel, M. Bonamy, 
whose statement of facts is very fair, and makes 
me suspect a little that he saw the weakness of 
his own cause. 

The authority of Christine de Pisan, a contem- 
porary panegyrist of the French king, is not per- 
haps very material in such a question : but she 
seems wholly ignorant of this supposed omission 
on Edward's side, and puts the justice of Charles 
V.'s war on a very different basis ; namely, that 
treaties not conducive to the public interest ought 
not to be kept.— Collection des Memoires, t. v., 
p. 137. A principle more often acted upon than 
avowed ! 



intrinsic difficulty of preserving such ac- 
quisitions. The French were already 
knit together as one people; and even 
those whose feudal duties sometimes 
led them into the field against their 
sovereign, could not endure the feeling 
of dismemberment from the monarchy. 
When the peace of Bretigni was to be 
carried into effect, the nobihty of the 
south remonstrated against the loss of 
the king's sovereignty, and showed, it is 
said, in their charters granted by Charle- 
magne, a promise never to transfer the 
right of protecting them to another. The 
citizens of Rochelle implored the king 
not to desert them, and protested their 
readiness to pay half their estates in 
taxes rather than fall under the power 
of England. John, with heaviness of 
heart, persuaded these faithful people to 
comply with that destiny which he had 
not been able to surmount. At length 
they sullenly submitted: we will obey, 
they said, the English with our lips, but 
our hearts shall never forget their allegi- 
ance.* Such unwilling subjects might 
perhaps have been won by a prudent gov- 
ernment ; but the temper of the Prince 
of Wales, which was rather stern and ar- 
bitrary, did not conciliate their hearts to 
his cause. t After the expedition into 
Castile, a most injudicious and fatal en- 
terprise, he attempted to impose a heavy 
tax upon Guienne. This was extended 
to the lands of the nobility, who claimed 
an immunity from all impositions. Many 
of the chief lords in Guienne and Gascony 
carried their complaints to the throne of 
Charles V., who had succeeded ^^^^^^^^ y 
his father in 1364, appeahng to Rupture of 
him as the prince's sovereign the peace of 
and judge. After a year's delay, '"'S'"- 
the king ventured to summon the Black 
Prince to answer these charges before the 
peers of France [A. J). 1368], and the war 
immediately recommenced between the 
two countries. J 

Though it is impossible to reconcile the 
conduct of Charles upon this occasion to 
those stern principles of rectitude wliich 



* Froissart, part i., chap. 214. 

t See an anecdote of his difference with the 
Seigneur d'Albret, one of the principal barons in 
Gascony, to which Froissart, who was then at 
Bordeaux, ascribes the alienation of the southern 
nobility, chap. 244. Edward III., soon after the 
peace of Bretigni, revoked all his grants in Gui- 
enne.— Rymer, t. vi., p. 391. 

t,On November 20, 1368, some time before the 
summons of the Prince of Wales, a treaty was con- 
cluded between Charles, and Henry, king of Cas- 
tile, wherein the latter expressly stipulates, that 
whatever parts of Guienne or England he might 
conquer, he would give up to the King of France. 
—Rymer, t. vi., p. 598. 



46 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



ought always to be obeyed, yet the ex- 
ceeding injustice of Edward in the former 
war, and the miseries which he inflicted 
upon an unoffending people in the prose- 
cution of his claim, will go far towards 
extenuating this breach of the treaty of 
Bretigni. It is observed, indeed, with 
some truth, by Rapin, that we judge of 
Charles's prudence by the event ; and 
that, if he had been unfortunate in the 
war, he would have brought on himself 
the reproaches of all mankind, and even 
of those writers who are now most ready 
to extol him. But his measures had been 
so sagaciously taken, that except through 
that perverseness of fortune, against 
which, especially in war, there is no se- 
curity, he could hardly fail of success. 
The elder Edward was declining through 
age, and the younger through disease ; 
the ceded provinces were eager to return 
to their native king, and their garrisons, 
as we may infer by their easy reduction, 
feeble and ill supplied. France, on the 
other hand, had recovered bi-eath after 
her losses : the sons of those who had 
fallen or fled at Poitiers were in the field ; 
a king, not personally warlike, but emi- 
nently wise and popular, occupied the 
throne of the rash and intemperate John. 
She was restored by the policy of Charles 
V. a-nd the valour of Du Guesclin. This 
hero, a Breton gentleman without for- 
tune or exterior graces, was the great- 
est ornament of France during that age. 
Though inferior, as it seems, to Lord 
Chandos in military skill, as well as in 
the polished virtues of chivalry, his un- 
wearied activity, his talent of inspiring 
confidence, his good fortune, the gen- 
erosity and frankness of his character, 
have preserved a fresh recollection of his 
name, which has hardly been the case 
with our countryman. 

In a few campaigns, the English were 
The English deprived of almost all their con- 
lose all their quests, and even, in a great de- 
conquests, gree, of their original posses- 
sions in Guienne. They were still formi- 
dable enemies, not only from their cour- 
age and alacrity in the war, but on ac- 
count of the keys of France which they 
held in their hands; Bordeaux, Bayonne, 
and Calais, by inheritance or conquest ; 
Brest and Cherbourg, in mortgage from 
their allies, the Duke of Britany and King 
of Navarre. But the successor of Edward 
III. was Richard II. ; a reign of feeble- 
ness and sedition gave no opportunity for 
prosecuting schemes of ambition. The 
war, protracted with few distinguished 
events for several years, was at length 
suspended by repeated armistices, not in- 



deed very strictly observed, and which 
the animosity of the English would not 
permit to settle in any regular treaty. 
Nothing less than the terms obtained at 
Bretigni, emphatically called the Great 
Peace, would satisfy a frank and cour- 
ageous people, who deemed themselves 
cheated by the manner of its infraction. 
The war was therefore always popular 
in England, and the credit which an am- 
bitious prince, Thomas, duke of Glouces- 
ter, obtained in that country, was cliiefly 
owing to the determined opposition which 
he showed to all French connexions. 
But the politics of Richard II. were of a 
diff"erent cast ; and Henry IV. was equal- 
ly anxious to avoid hostilities with France ; 
so that, before the unhappy condition of 
that kingdom tempted his son to revive 
the claims of Edward in still more favour- 
able circumstances, there had been thirty 
years of respite, and even some intervals 
of friendly intercourse between the two 
nations. Both, indeed, were weakened by 
internal discord ; but France more fatally 
than England. But for the calamities of 
Charles VI. 's reign, she would probably 
have expelled her enemies from the king- 
dom. The strength of that fertile and 
populous country was recruited with sur- 
prising rapidity. Sir Hugh Calverley, a 
famous captain in the wars of Edward 
HI., while serving in Flanders, laughed at 
the herald, who assured him that the King 
of France's army, then entering the coun- 
try, amounted to 26,000 lances ; asserting 
that he had often seen their largest mus- 
ters, but never so much as a fourth part 
of the number.* The relapse of this 
great kingdom under Charles VI. was 
more painful and perilous than her first 
crisis ; but she recovered from each 
through her intrinsic and inextinguisha- 
ble resources. 

Charles V., surnamed the Wise, after a 
reign which, if we overlook a little ob- 
liquity in the rupture of the peace of Bre- 
tigni, may be deemed one of the most 
honourable in French history, dying pre- 
maturely, left the crown to his Accession of 

son, a boy of thirteen, under Charles vi. 
the care of three ambitious un- ^^^''• 
cles, the dukes of Anjou, Berry, and Bur 
gundy. Charles had retrieved the glory, 
restored the tranquillity, revived the spirit 
of his country ; the severe trials which 
exercised his regency, after the battle of 
Poitiers, had disciplined his mind ; he be- 
came a sagacious statesman, an encour- 
ager of literature, a beneficent lawgiver. 
He erred doubtless, though upon plausible 



* Froissart, p. ii., c. 142. 



Part II.] 



FRANCE. 



47 



grounds, in accumulating a vast treasure, 
which the Duke of Anjou seized before 
he was cold in the grave. But all the 
fruits of his wisdom were lost in the suc- 
ceeding reign. In a government essen- 
tially popular, the youth or imbecility of 
the sovereign creates no material de- 
rangement. In a monarchy, where all 
the springs of the system depend upon 
one central force, these accidents, which 
are sure in the course of a few genera- 
tions to recur, can scarcely fail to dislo- 
cate the whole machine. During the for- 
ty years that Charles VI. bore the name 
of king, rather than reigned in France, 
that country was reduced to a state far 
more deplorable than during the captivi- 
ty of John. 

A great change had occurred in the 
political condition of France during the 
fourteenth century. As the feudal mili- 
tia became unserviceable, the expenses of 
war were increased through the necessi- 
ty of taking troops into constant pay ; 
and while more luxurious refinements of 
livmg heightened the temptations to pro- 
fuseness, the means of enjoying them 
were lessened by improvident alienations 
of the domain. Hence taxes, hitherto al- 
most unknown, were levied incessantly, 
and with all those circumstances of op- 
pression which are natural to the fiscal 
proceedings of an arbitrary government. 
These, as has been said before, gave rise 
to the unpopularity of the two first Valois, 
and were nearly leading to a complete 
revolution in the convulsions that suc- 
ceeded the battle of Poitiers. The con- 
fidence reposed in Charles V.'s wisdom 
and economy kept every thing at rest 
during his reign, though the taxes were 
still very heavy. But the seizure of his 
vast accumulations by the Duke of Anjou, 
and the ill faith with which the new gov- 
ernment imposed subsidies, after promis- 
ing their abolition, provoked the people 
of Paris, and sometimes of other places. 
Seditions to repeated Seditions. The States 
at Paris. General not only compelled the 
government to revoke these impositions 
and restore the nation, at least according 
to the language of edicts, to all their lib- 
erties, but, with less wisdom, refused to 
make any grant of money. Indeed, a re- 
markable spirit of democratical freedom 
was then rising in those classes on whom 
the crown and nobility had so long tram- 
pled. An example was held out by the 
Flemings, who, always tenacious of their 
privileges, because conscious of their abil- 
ity to maintain them, were engaged in a 
furious conflict with Louis, count of Flan- 
ders. The court of France took part in 



this war ;* and after obtaining a decisive 
victory over the citizens of Ghent, Charles 
VI. returned to chastise those of Paris. f 
Unable to resist the royal army, the city 
was treated as the spoil of conquest ; its 
immunities abridged ; its most active lead- 
ers put to death; a fine of uncommon 
severity imposed ; and the taxes renew- 
ed by arbitrary prerogative. But the peo- 
ple preserved their indignation for a fa- 
vourable moment ; and were unfortunate- 
ly led by it, when rendered subservient 
to the ambition of others, into a series of 
crimes, and a long alienation from the 
interests of their country. 

It is difficult to name a limit beyond 
which taxes will not be borne without 
impatience, when they appear to be call- 
ed for by necessity, and faithfully ap- 
plied ; nor is it impracticable for a skil- 
ful minister to deceive the people in both 
these respects. But the sting of taxation 
is wastefulness. What high-spirited man 
could see without indignation the earn- 
ings of his labour, yielded ungrudgingly 
to the public defence, become the spoil 
of parasites and peculators ? It is this 
that mortifies the liberal hand of public 
spirit ; and those statesmen who deem 



* The Flemish rebellion, which originated in an 
attempt, suggested by bad advisers to the count, to 
impose a tax upon the people of Ghent without 
their consent, is related m a very interestmg man- 
ner by Froissart, p. ii., c. 37, &c., who equals He- 
rodotus in simplicity, liveliness, and power over the 
heart. I would advise the historical student to ac- 
quaint himself with these transactions, and with 
the corresponding tumults at Paris. They are 
among the eternal lessons of history ; for the un- 
just encroachments of courts, the intemperate pas- 
sions of the multitude, the ambition of demagogues, 
the cruelty of vicious factions, will never cease to 
have their parallels and their analogies ; while the 
military achievements of distant times afford, in 
general, no instruction, and can hardly occupy too 
little of our time in historical studies. The pref 
aces to the fifth and sixth volumes of the Ordon 
nances des Rois de France, contain more accurate 
information as to the Parisian disturbances than 
can be found in Froissart. 

t If Charles VI. had been defeatedby the Flem- 
ings, the insurrection of the Parisians, Froissart 
says, would have spread over France ; toute gentil- 
lesse et noblesse eiit ete morte et perdue en France ; 
nor would the Jacquerie have ever been si grande 
et si horrible, c. 120. To the example of the Gan- 
tois he ascribes the tumults which broke out about 
the same time in England as well as in France, c. 
84. The Flemish insurrection would probably 
have had more important consequences, if it had 
been cordially supported by the English govern- 
ment. But the danger of encouraging that demo- 
cratical spirit which so strongly leavened the com- 
mons of England, might justly be deemed by Rich 
ard II. 's council much more than a counterbalance 
to the advantage of distressing France. When too 
late, some attempts were nuule, and the Flemish 
towns acknowledged Richard as King of France in 
1384.— Ryraer t. vii., p. 448. 



48 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



the security of government to depend 
not on laws and armies, but on the moral 
sympathies and prejudices of the people, 
\vill vigilantly guard against even the 
suspicion of prodigality. In the present 
stage of society it is impossible to con- 
ceive that degree of misapplication which 
existed in the F'rench treasury under 
Charles VI., because the real exigencies 
of the state could never again be so in- 
considerable. Scarcely any military force 
■was kept up ; and the produce of the 
grievous impositions then levied was 
chiefly lavished upon the royal house- 
hold, or plundered by the officers of gov- 
ernment.* This naturally resulted from 
the peculiar and afflicting circumstances 
of this reign. The Duke of Anjou pre- 
tended to be entitled by the late king's 
appointment, if not by the constitution 
of France, to exercise the government 
as regent during the minority;! but this 



* The expenses of the royal household, which 
under Charles V. were 94,000 livres, amounted in 
1412 to 450,000.— Villaret, t. iii., p. 243. Yet the 
king was so ill supplied that his plate had been 
pawned. When Montagu, minister of the finan- 
ces, was arrested, in 1409, all this plate was found 
concealed in Ids house. 

t It has always been an unsettled point, whether 
the presumptive heir is entitled to the regency of 
France ; and, if he be so to the regency, whether 
this includes the custody of the minor's person. 
The particular case of the Duke of Anjou is sub- 
ject to a considerable apparent difficulty. Two 
instruments of Charles V., bearing the same date 
of October, 1374, as published by Dupuy (Traite 
de Majorite des Rois, p. 161), are plainly irrecon- 
cilable with each other ; the former giving the 
exclusive regency to the Duke of Anjou, reserving 
the custody of the minor's person to other guar- 
dians ; the latter conferring not only this custody, 
but the government of the kingdom, on the queen, 
and on the dukes of Burgundy and IBourbon, with- 
out mentioning the Duke of Anjou's name. Daniel 
calls these testaments of Charles V., whereas they 
are in the form of letters patent ; and supposes 
that the king had suppressed both, as neither party 
seems to have availed itself of their authority in 
the discussions that took place after the king's 
death.— (Hist, de France, t. iii., p. GG2, edit. 1720.) 
Villaret, as is too much his custom, slides over the 
difficulty without notice. But M. de Brequigny 
(Mem. de I'Acad. des Inscript., t. 1., p. 533) ob- 
serves that the second of these instruments, as 
published by M. Secousse, in the Ordonnances 
des Rois, t. vi., p. 406, differs most essentially from 
that in Dupuy, and contams no mention whatever 
of the government. It is therefore easily recon- 
cileable with the first, that confers the regency on 
the Duke of Anjou. As Dupuy took it from the 
same source as S6cousse, namely, the Tressor 
des Chartes, a strong suspicion of wilful interpo- 
lation falls upon him, or upon the editor of this 
posthumous work, printed in 1655. This date 
will readily suggest a motive for such an interpo- 
lation, to those who recollect the circumstances 
of France at that time, and for some years before ; 
Anne of Austria having maintained herself in pos- 
session of a testamentary regency against the pre- , 
Bumptive heir. 



period, which vrould naturally be very 
short, a law of Charles V. having fixed 
the age of majority at thirteen, was still 
more abridged by consent ; and after the 
young monarch's coronation, he was 
considered as reigning with full personal 
authority. Anjou, Berry, and Burgundy, 
together with the king's maternal uncle, 
the Duke of Bourbon, divided the actual 
exercise of government. 

The first of these soon undertook an 
expedition into Italy, to possess himself 
of the crown of Naples, in which he per- 
ished. Berry was a profuse and voluptu- 
ous man, of no great talents ; though his 
rank, and the middle position which he 
held between struggling parties, made 
him rather conspicuous throughout the 
revolutions of that age. The most re- 
spectable of the king's uncles, the Duke 
of Bourbon, being further removed from 
the royal stem, and of an unassuming 
character, took a less active part than 
his three coadjutors. Burgundy, an am- 
bitious and able prince, maintained the 
ascendency, until Charles, weary of a 
restraint which had been protracted by 
his uncles till he was in his twenty-first 
year [A. D. 1387], took the reins into 
his own hands. The dukes of Burgundy 
and Berry retired from court, and the 
administration was committed to a dif- 
ferent set of men, at the head of whom 
appeared the Constable de Clisson, a sol- 
dier of great fame in the English wars. 
The people rejoiced in the fall of the 
princes by whose exactions they had 
been plundered; but the new ministers 
soon rendered themselves odious by sim- 
ilar conduct. The fortune of Clisson, 
after a few years' favour, amounted to 
1,700,000 livres, equal in weight of sil- 
ver, to say nothing of the depreciation 
of money, to ten times that sum at pres- 
ent.* 

[A. D. 1393.] Charles VI. had reigned 
five years from his minority. Derangement 
when he was seized with a orchariesvi. 
derangement of intellect, which continu- 
ed, through a series of recoveries and 
relapses, to his death. He passed thirty 
years in a pitiable state of suffering, neg- 
lected by his family, particularly by the 
most infamous of Avomen, Isabel of Ba- 
varia, his queen, to a degree which is 
hardly credible. The ministers were 
immediately disgraced; the princes re- 
assumed their stations. For several years 
the Duke of Burgundy conducted the 
government. But this was in opposition 
to a formidable rival, Louis, duke of Or- 



* Froissart, p. iv., c. 46 



PXRT II.] 



FRANCE. 



49 



leans, the king's brother. It was impos- 
Partiesof ^^^^^ ^^^^^ ^ prince so near to 
Burgundy the throne, favoured by the 
and Orleans, queen perhaps with criminal 
fondness, and by the people on account 
of his external graces, should not ac- 
quire a share of power. He succeeded 
at length in obtaining the whole manage- 
ment of affairs ; wherein the outrageous 
dissoluteness of his conduct, and still 
more the excessive taxes imposed, ren- 
dered him altogether odious. The Paris- 
ians compared his administration with 
that of the Duke of Burgundy; and from 
that time ranged themselves on the side 
of the latter and his family, throughout 
the long distractions to which the am- 
bition of these princes gave birth. 

The death of the Duke of Burgundy, 
in 1401, after several fluctuations of suc- 
cess between him and the Duke of Or- 
leans, by no means left his party without 
a head. Equally brave and ambitious, 
but far more audacious and unprincipled, 
his son John, surnamed Sans-peur, sus- 
tained the same contest. A reconcilia- 
tion had been, however, brought about 
with the Duke of Orleans ; they had 
sworn reciprocal friendship, and partici- 
pated, as was the custom, in order to 
render these obligations more solemn, 
in the same communion. In the midst 
Murder of ^f this outward harmony [A. 
the Uuke of D. 1407], the Duke of Orleans 
Orleans. ^g^g assassinated in the streets 
of Paris. After a slight attempt at con- 
cealment, Burgundy avowed and boasted 
of the crime, to which he had been in- 
stigated, it is said, by somewhat more 
than political jealousy.* From this fatal 
moment the dissensions of the royal fam- 
ily began to assume the complexion of 
civil war. The queen, the sons of the 
Duke of Orleans, with the dukes of Ber- 
ry and Bourbon, united against the assas- 
sin. But he possessed, in addition to his 
own appanage of Burgundy, the county 
of Flanders as his maternal inheritance ; 
and the people of Paris, who hated the 
Duke of Orleans, readily forgave, or rath- 
er exulted in, his murder. 

It is easy to estimate the weakness of 
the government from the terms upon 
which the Duke of Burgundy was per- 
mitted to obtain pardon at Chartres, a 
year after the perpetration of the crime. 
As soon as he entered the royal pres- 
ence, every one rose, except the king, 

♦ Orleans is said to have boasted of the Dutchess 
of Burgundy's favours. — Vill., t. xii., p. 474. Amel- 
gard, who wrote about eighty years after the time, 
says, vimetiarn inferre attentare praasumpsit. — No- 
tices des Manuscrits du Roi, t. i., p. 411, 
D 



queen, and dauphin. The duke, approach- 
ing the throne, fell on his knees ; when 
a lord, who acted as a sort of counsel 
for him, addressed the king : " Sire, the 
Duke of Burgundy, your cousin and ser- 
vant, is come before you, being informed 
that he has incurred your displeasure on 
account of what he caused to be done to 
the Duke of Orleans your brother, for 
your good and that of your kingdom, as 
he is ready to prove when it shall please 
you to hear it ; and therefore requests 
you, with all humility, to dismiss your 
resentment towards him, and to receive 
him into your favour."* 

This insolent apology was all the 
atonement that could be extorted for the 
assassination of the first prince of the 
blood. [A. D. 1410.] It is not wonderful 
that the Duke of Burgundy soon obtained 
the management of affairs, and drove his 
adversaries from tlie capital. The prin- 
ces, headed by the fatlier-in- civii war 
law of the young Duke of Or- between the 
leans, the Count of Armagnac, Parties- 
from whom their party was now denomi- 
nated, raised their standard against him ; 
and the north of France was rent to 
pieces by a protracted civil war, in which 
neither party scrupled any extremity of 
pillage or massacre. Several times peace 
was made ; but each faction, conscious 
of their own insincerity, suspected that 
of their adversaries. The king, of whose 
name both availed themselves, was only 
in some doubtful intervals of reason ca- 
pable of rendering legitimate the acts of 
either. The dauphin, aware of the tyr- 
anny which the two parties alternately 
exercised, was forced, even at the ex- 
pense of perpetuating a civil war, to 
balance one against the other, and per- 
mit neither to be wholly subdued. He 
gave peace to the Armagnacs at Aux- 
erre, in despite of the Duke of Burgundy ; 
and having afterward united with them 
against this prince [A. D. 1412], and car- 
ried a successful war into Flanders, he 
disappointed their revenge by concluding 
with him a treaty at Arras. [A. D. 1414.] 

This dauphin, and his next brother, died 
within sixteen months of each other, by 
which the rank devolved upon Charles, 
youngest son of the king. The Count 
of Armagnac, now Constable of France, 
retained possession of the government. 
But his severity and the weight of tax- 
es revived the Burgundian party in 
Paris [A. D. 1417], which a rigid *P"'' 
proscription had endeavoured to destroy. 
He brought on his head the implacable 

* Monstrelet, part i., f. 112. 



50 



EUROPE DURING THE MIDDLE AGES. 



[Chap. i. 



hatred of the queen, whom he had not 
only shut out from pubUc affairs, but dis- 
graced by the detection of her gallant- 
ries. [A. D. 1417.] Notwithstanding her 
ancient enmity to the Duke of Burgundy, 
she made overtures to him, and, being 
delivered by his troops from confinement, 
declared herself openly on his side. A 
few obscure persons stole the city keys, 
and admitted the Burgundians into Paris. 
The tumult which arose showed in a 
moment the disposition of the inhabi- 
tants ; but this was more horribly dis- 
played a few days afterward, when the 
J 12 populace, rushing to the prisons 
[A. D. 1418], massacred the Con- 
stable d'Armagnac and his partisans. Be- 
tween three and four thousand persons 
were murdered on this day, which has 
no parallel but what our own age has 
witnessed, in the massacre perpetrated 
by the same ferocious populace of Paris, 
under circumstances nearly similar. [A. 
D. 1419.] Not long afterward an agree- 
ment took place between the Duke of 
Burgundy, who had now the king's per- 
son, as well as the capital, in his hands, 
and the dauphin, whose party was enfee- 
bled by the loss of almost all its lead- 
ers. This reconciliation, which mutual 
interest should have rendered permanent, 
had lasted a very short time, when the 
Assassination ^uke of Burgundy was assas- 
of the Duke of sinated at an interview with 
Burgundy. Charles, in his presence, and 
by the hands of his friends, though not 
perhaps with his previous knowledge.* 

* There are three suppositions conceivable to 
explain this important passage in history, the as- 
sassination of .lohn Sans-peur. 1. It was pretend- 
ed by the dauphin's friends at the time, and has 
been maintained more lately (St. Foix, Essais sur 
Paris, t. iii., p. 209, edit. 1767), that he had pre- 
meditated the murder of Charles, and that his own 
was an act of self-defence. This is, I think, quite 
improbable ; the dauphin had a great army near 
the spot, while the duke was only attended by five 
hundred men. Villaret indeed, and St. Foix, in 
order to throw suspicion upon the Duke of Bur- 
gundy's motives, assert that Henry V. accused 
him of having made proposals to him which he 
could not accept without offending God ; and con- 
jecture that this might mean the assassination of 
the dauphin. But the expressions of Henry do 
not relate to any private proposals of the duke, but 
to demands made by him and the queen, as proxies 
for Charles VI., in conference for peace, which he 
says he could not accept without oftending God 
and contravening his own letters patent. — (Rymer, 
t. ix., p. 790.) It is not, however, very clear what 
this means. 2. The next hypothesis is, that it 
was the deliberate act of Charles. But his youth, 
his feebleness of spirit, and especially the conster- 
nation into which, by all testimonies, he was 
thrown by the event, are rather adverse to this ex- 
planation. 3. It remains only to conclude that 
Tanegui de Chastel, and other favourites of the 
dauphin, long attached to the Orleans faction, who 



From whomsoever the crime proceeded, 
it was a deed of infatuation, and plunged 
France afresh into a sea of perils, from 
which the union of these factions had 
just afforded a hope of extricating her. 

It has been mentioned already that 
the English war had almost intrigues of 
ceased during the reigns of French princes 
Richard II. and Henry IV. ^"" England. 
The former of these was attached by in- 
clination, and latterly by marriage, to the 
court of France : and though the French 
government showed at first some dispo- 
sition to revenge his dethronement, yet 
the new king's success, as well as domes- 
tic quarrels, deterred it from any serious 
renewal of the war. A long commercial 
connexion had subsisted between Eng- 
land and Flanders, which the dukes of 
Burgundy, when they became sovereigns 
of the latter country upon the death of 
Count Louis, in 1384, Avere studious to 
preserve by separate truces.* They act- 
ed upon the same pacific policy when 
their interest predominated in the councils 
of France. Henry had even a negotia- 
tion pending for the marriage of his eld- 
est son with a princess of Burgundy,t 
when an unexpected proposal from the 
opposite side set more tempting views 
before his eyes. The Armagnacs, press- 
ed hard by the Duke of Burgimdy, offer- 
ed, in consideration of only 4000 troops, 
the pay of which they would themselves 
defray, to assist him in the recovery of 
Guienne and Poitou. Four princes of 
the blood. Berry, Bourbon, Orleans, 
and Alen9on, disgraced their names ^^^' 
by signing this treaty.^ [A. D. 1412.] 
Henry broke off liis alliance with Bur- 
gundy, and sent a force into France, 
which found, on its arrival, that the prin- 
ces had made a separate treaty, without 
the least concern for their English allies. 
After his death, Henry V. engaged for 
some time in a series of negotiations 
with the French court, where the Or- 
leans party now prevailed, and with the 
Duke of Burgundy. He e^en secretly 
treated at the same time for a marriage 
with Catharine of France (which seems 



justly regarded the duke as an infamous assassin, 
and might question his sincerity or their own 
safety if he should regain the ascendant, took ad- 
vantage of this opportunity to commit an act of re- 
taliation, less criminal, but not less ruinous in its 
consequences, than that which had provoked it. 
Charles, however, by his subsequent conduct, re- 
cognised their deed, and naturally exposed him- 
self to the resentment of the young Duke of Bur- 
gundy. 

* Rymer, t. viii., p. 511. Villaret, t. xii., p. 174. 

t Idem, t. viii., p. 721. 

i Rymer, t. viii., pp. 726, 737, 738. 



Pabt II.] 



FRANCE. 



51 



to have been his favourite, as it was ulti- 
mately his successful, project), and with 
a daughter of the duke ; a duplicity not 
creditable to his memory.* But Henry's 
ambition, which aimed at the highest 
quarry, was not long fettered by nego- 
tiation ; and indeed his proposals of mar- 
rying Catharine were coupled with such 
exorbitant demands, as France, notwith- 
standing all her weakness, could not ad- 
mit ; though she would have ceded Gui- 
enne, and given a vast dowry with the 

Invasion of P""C/«/-t t^. D. 1415 ] He 

France hy invaded Normaudy, took Har- 
Henry V. fleur, and won the great battle 
of Azincourt on his march to Calais. | 

The flower of French chivalry was 
mowed down in this fatal day, but espe- 
cially the chiefs of the Orleans party, 
and the princes of the royal blood, met 
with death or captivity. Burgundy had 
still suffered nothing ; but a clandestine 
negotiation had secured the duke's neu- 
trality, though he seems not to have en- 
tered into a regular alliance till a year 
after the battle of Azincourt : when, by a 
secret treaty at Calais, he acknowledged 
the right of Henry to the crown of 
France, and his own obligation to do 
him homage, though its performance was 
to be suspended till Henry should be- 
come master of a considerable part of 
the kingdom. 1^ In a second invasion 
the English achieved the conquest of 
Normandy; and this, in all subsequent 
negotiations for peace during the life 
of Henry, he would never consent to 
relinquish. After several conferences, 
which his demands rendered abortive, 
the French court at length consented to 
add Normandy to the cessions made in 
the peace at Bretigni ;]| and the treaty, 



* Rymer, t. ix., p. 136. 

+ Tiie terms required by Henry's ambassadors in 
1415, were the crown of France ; or, at least, re- 
serving Henry's rights to that, Normandy, Tou- 
raine, Maine, Guienne, with the homage of Brit- 
any and Flanders. The French offered Guienne 
and Saintonge, and a dowry of 800,000 gold crowns 
for Catharine. The English demanded 2,000,000. 
— Rymer, t. ix., p. 218. 

t The English army at Azincourt was probably 
of not more than 15,000 men ; the French were, at 
the least, 50,000, and by some computations much 
more numerous. They lost 10,000 killed, of whom 
9000 were knights or gentlemen. Almost as many 
were made prisoners. The English, according to 
Monstrelet, lost 1600 men; but their own his- 
torians reduce this to a very small number. It is 
curious that the Duke of Berry, who advised the 
French to avoid an action, had been in the battle 
of Poitiers fifty-nine years before. — Vill., t. xiii., 
p. 355. 

() Compare Rymer, t. ix., p. 34, 138, 304, 394. 
The last reference is to the treaty of Calais. 

II Rym., t. ix., p. 628, 763. Nothing can be more 
D2 



though labouring under some difficulties, 
seems to have been nearly completed, 
when the Duke of Burgundy [A. 
D. 1419], for reasons unexplain- "'^ ^^ 
ed, suddenly came to a reconciliation 
with the dauphin. This event, which 
must have been intended adversely to 
Henry, would probably have broken off 
all parley on the subject of peace, if it 
had not been speedily followed by one 
still more surprising, the assassi- 
nation of the Duke of Burgundy '^^'' * 
at Montereau. 

An act of treachery so apparently un- 
provoked, inflamed the minds of that 
powerful party which had looked up to 
the duke as their leader and patron, 
The city of Paris especially abjured a^ 
once its respect for the supposed author 
of the murder, though the legitimate heir 
of the crown. A solemn oath was taken 
by all ranks to revenge the crime ; the 
nobility, the clergy, the parliament, vy- 
ing with the populace in their invec- 
tives against Charles, whom they now 
styled only pretended (soi-disant) dau- 
phin. Philip, son of the assassinated 
duke, who, with all the popularity and 
much of the ability of his father, did not 
inherit his depravity, was instigated by a 
pardonable excess of filial resentment to 
ally himself with the King of England. 
These passions of the people and the 
Duke of Burgundy, concurring with the . 
imbecility of Charles VI., and the ran- 
cour of Isabel towards her son. Treaty of 
ledto the treaty of Troyes. This Troyes. 
compact, signed by the queen ^^^^' ^*^' 
and duke, as proxies of the king, who 
had fallen into a state of unconscious id- 
iocy, stipulated that Henry V., upon his 
marriage with Catharine, should become 
immediately regent of France, and, after 
the death of Charles, succeed to the 
kingdom, in exclusion not only of the 
dauphin, but of all the royal family.* It 
is unnecessary to remark that these fla- 
gitious provisions were absolutely inval- 
id. But they had at the time the strong 

insolent than the tone of Henry's instructions to 
his commissioners, p. 628. 

* As if through shame on account of what was to 
follow, the first articles contain petty stipulations 
about the dower of Catharine. The sixth gives 
the kingdom of France, after Charles's decease, to 
Henry and his heirs. "The seventh concedes the 
immediate regency. Henry kept Normandy by 
right of conquest, not in virtue of any stipulation 
in the treaty, which he was too proud to admit. 
The treaty of Troyes was confirmed by the States 
General, or rather by a partial convention which 
assumed the name, in December, 1420. — Rym., t. x., 
p. 30. The parUament of England did the same. 
—Id., p. no. It is printed at fall length by Villa- 
ret, t. XV., p. 84. 



62 



EUROPE DURING THE MIDDLE AGES. 



[Chap, i 



sanction offeree ; and Henry might plau- 
sibly flatter himself with a hope of estab- 
lishing his own usurpation as firmly in 
France as his father's had been in Eng- 
land. What neither the comprehensive 
pohcy of Edward III., the energy of the 
Black Prince, the valour of their KnoUy- 
ses and Chandoses, nor his own victories 
could attain, now seemed, by a strange 
vicissitude of fortune, to court his ambi- 
tion. During two years that Henry lived 
after the treaty of Troyes, he governed 
the north of France with unhmited au- 
thority in the name of Charles VI. The 
latter survived his son-in-law but a few 
weeks ; and the infant Henry VI. was 
immediately proclaimed King of France 
and England, under the regency of his 
uncle the Duke of Bedford. 

Notwithstanding the disadvantage of a 
-. , , minority, the English cause 

State of , •" 1 J u *i 

France at the was less weakened by the 
accession of death of Henry than might 
Charles xu. ^^^^ ^^^^^ expected. [A. D. 

1422.] The Duke of Bedford partook of 
the same character, and resembled his 
brother in faults as well as virtues ; in his 
haughtiness and arbitrary temper, as in his 
energy and address. At the accession of 
Charles VII., the usurper was acknowl- 
edged by all the northern provinces of 
France, except a few fortresses, by most 
of Guienne, and the dominions of Bur- 
gundy. [A. D. 1423.] The Duke of Brit- 
any soon afterward acceded to the treaty 
of Troy es, but changed his party again sev- 
eral times within a few years. The cen- 
tral provinces, with Languedoc, Poitou, 
and Dauphine, were faithful to the king. 
For some years the war continued without 
any decisive result ; but the balance was 
clearly swayed in favour of England. 
^ For this it is not difficult to as- 

Causes of • , mi 

the success Sign Several causes. Ihe ani- 
of the Eng- mosity of the Parisians and the 
lish. Duke of Burgundy against the 

Armagnac party still continued, mingled 
in the former with dread of the king's re- 
turn, whom they judged themselves to 
have inexpiably offended. The war had 
brought forward some accomplished com- 
manders in the English army; surpas- 
sing, not indeed in valour and enterprise, 
but in military skill, any whom France 
could oppose to them. Of these the 
most distinguished, besides the Duke of 
Bedford himself, were Warwick, Sahs- 
bury, and Talbot. Their troops, too, 
were still very superior to the French. 
But this, we must in candour allow, pro- 
ceeded in a great degree from the mode 
in which they were raised. The war 
was so popular in England, that it was 



easy to pick the best and stoutest re 
cruits,* and their high pay allured men 
of respectable condition to the service. 
We find in Rymer a contract of the Earl 
of Salisbury to supply a body of troops, 
receiving a shilling a day for every man 
at arms, and sixpence for each archer. f 
This is perhaps equal to fifteen times the 
sum at our present value of money. 
They were bound indeed to furnish tlieir 
own equipments and horses. But France 
was totally exhausted by her civil and 
foreign war, and incompetent to defray 
the expenses even of the small force 
which defended the wreck of the monar- 
chy. Charles VII. lived in the utmost 
poverty at Bourges.J The nobility had 
scarcely recovered from the fatal slaugh- 
ter of Azincourt, and the infantry, com- 
posed of peasants or burgesses, which 
had made their army so numerous upon 
that day, whether from inability to com- 
pel their services, or experience of their 
inefficacy, were never called into tlie 
field. It became almost entirely a war 
of partisans. Every town in Picardy, 
Champagne, Maine, or wherever the con- 
test might be carried on, was a fortress ; 
and in the attack or defence of these gar- 
risons, the valour of both nations was 
called into constant exercise. This mode 
of warfare was undoubtedly the best in 
the actual state of France, as it gradually 
improved her troops, and flushed them 
with petty successes. But what princi- 
pally led to its adoption was the license 
and insubordination of the royalists, who, 
receiving no pay, owned no control, and 
thought that, provided they acted against 
the English and Burgundians, they were 
free to choose their own points of attack. 
Nothing can more evidently show the 
weakness of France, than the high terms 
by which Charles VII. was content to 
purchase the assistance of some Scot- 
tish auxiliaries. The Earl of Buchan 
was made constable ; the Earl of Doug- 
las had the dutchy of Touraine, with a 
new title, lieutenant-general of the king- 
dom. At a subsequent time, Charles of- 
fered the province of Saintonge to .Tames 
I. for an aid of 6000 men. These Scots 
fought bravely for France, though unsuc- 

* Monstrelet, part i., f. 303. 

t Rym., t. X.. p. 392. This contract was for 600 
men at arms, including six bannerets, and thirty- 
lour bachelors; and for 1700 archers; bien et 
sufllsamment montez, armez, et arraiez comme a 
leurs estats apparlient. The pay was, for the earl, 
(>s. 8d. a day ; fur a banneret, 4s. ; lor a baclielor, 
2s. ; for every other man at arms. Is. ; and for 
each archer, Gd. Artillcry-men were paid higher 
than men at arms. 

I Villaret, t. xiv,, p 302. 



Part II. J'^ 



FRANCE. 



53 



cessfuUy, at Crevant and Verneuil ; but 
it must be owned they set a sufficient 
value upon .heir service. Under all 
these disadvantages, it would be unjust 
to charge the French nation with any in- 
feriority of courage, even in the most 
unfortunate periods of this war. Though 
frequently panic-struck in the field of bat- 
tle, they stood sieges of their walled towns 
with matchless spirit and endurance. Per- 
haps some analogy may be found between 
the character of the French commonalty 
during the English invasion, and the 
Spaniards of the late peninsular war. 
But to the exertions of those brave 
nobles who restored the monarchy of 
Charles VII., Spain has afforded no ade- 
quate parallel. 

It was, however, in the temper of 
Character Charles VII. that his enemies 
of Charles found their chief advantage. This 
^"- prince is one of the few whose 

character has been improved by prosper- 
ity. During the calamitous morning of 
his reign, he shrunk from fronting the 
storm, and strove to forget himself in 
pleasure. Though brave, he was never 
seen in war; though inteUigent, he was 
governed by flatterers. Those who had 
committed the assassination at Monte- 
reau under his eyes were his first favour- 
ites ; as if he had determined to avoid 
the only measure through which he could 
hope for better success, a reconciliation 
with the Duke of Burgundy. The Count 
de Richemont, brother of the Duke of 
Britany, who became afterward one of 
the chief pillars of his throne, consented 
to renounce the English alliance, and ac- 
cept the rank of constable, on condition 
that these favourites should quit the 
court. [A. D. 1424.] Two others, who 
successively gained a similar influence 
over Charles, Richemont pubUcly caused 
to be assassinated, assuring the king that 
it was for his own and the public good. 
Such was the debasement of morals and 
government which twenty years of civil 
war had produced ! Another favourite. 
La Tremouille, took the dangerous office, 
and, as might be expected, employed his 
influence against Richemont, who for 
some years lived on his own domains, 
rather as an armed neutral than a friend, 
though he never lost his attachment to 
the royal cause. 

It cannot therefore surprise us, that with 
all these advantages the regent Duke of 
Bedford had almost completed the cap- 
ture of the fortresses north of the Loire, 
Siege of when he invested Orleans in 1428. 
Orleans. If this city had fallen, the central 
provinces, which were less furnished with 



defensible places, would have lain open 
to the enemy ; and it is said that Charles 
VII. in despair was about to retire into 
Dauphine. At this time his aff'airs were 
restored by one of the most marvellous 
revolutions in history. A country girl 
overthrew the power of Eng- 
land. We cannot pretend to J^^nof^^c- 
explain the surprising stdry of the Maid 
of Orleans ; for, howevei easy it may be 
to suppose that a heated and enthusiastic 
imagination produced her own visions, it 
is a much greater problem to account for 
the credit they obtained, and for the suc- 
cess that attended her. Nor will this be 
solved by the hypothesis of a concerted 
stratagem ; which, if we do not judge al- 
together from events, must appear liable 
to so many chances of failure, that it 
could not have suggested ,^self to any ra- 
tional person. However, it is certain that 
the appearance of Joan of Arc turned the 
tide of war, which from that moment 
flowed without interruption in Charles's 
favour. A superstitious awe enfeebled 
the sinews of the English. They hung 
back in their own country, or deserted 
from the army, through fear of the incan- 
tations, by which alone they conceived so 
extraordinary a person to succeed.* As 
men always make sure of Providence 
for an ally, whatever untoward fortune 
appeared to result from preternatural 
causes was at once ascribed to infernal 
enemies ; and such bigotry may be plead- 
ed as an excuse, though a very miserable 
one, for the detestable murder of this 
heroine. t 

The spirit which Joan of Arc had roused 
did not subside. France recovered con- 
fidence in her own strength, which had 
been chilled by a long course of adverse 
fortune. The king, too, shook off" his in- 

* Rym., t. X., p. 458-472. This, however, is con- 
jecture ; for the cause of their desertion is not men- 
tioned in these proclamations, though Rymer has 
printed it in their title. But the Duke of Bedford 
speaks of the turn of success as astonishing, and 
due only to the superstitious fear which the Eng- 
lish had conceived of a female magician. — Rymer, 
t. X., p. 408. 

t M. de I'Averdy, to whom we owe the copious 
account of the proceedings against Joan of Arc, as 
well as those which Charles VII. instituted in or- 
der to rescind the former, contained in the third 
volume of Notices des Manuscrits du Roi, has just- 
ly made this remark, which is founded on the ea- 
gerness shown by the university of Paris in the 
prosecution, and on its being conducted before an 
inquisitor ; a circumstance exceedingly remarkable 
in the ecclesiastical history of France. But anoth- 
er material observation arises out of this. The 
maid was pursued with peculiar bitterness by her 
countrymen of the English, or rather Burgundian, 
faction ; a proof that, in 1130, their animosity 
against Charles VII. was still ardent. 



54 



EUROPE DURING THE MIDDLE AGES. 



^Chap. I. 



The king dolence,* and permitted Riche- 
retrieves iiis moiit to excludc his unworthy 
affairs, favourites from the court. Tiiis 
led to a very important consequence. 
The Duke of Burgundy, whose alliance 
with England had been only the fruit of 
indignation at his father's murder, fell nat- 
urally, as that passion wore out, into sen- 
timents more congenial to his birth and 
interests. A prince of the house of Capet 
could not willingly see the inheritance 
of his ancestors transferred to a stranger. 
And he had met with provocation both 
from the regent and the Duke of Glou- 
cester, who, in contempt of all policy and 
justice, had endeavoured, by an invalid 
marriage with Jacquehne, countess of 
Hainault and Holland, to obtain provinces 
which Burgundy designed for himself. 
Yet the union of his sister with Bedford, 
the obligations by which he was bound, 
and, most of all, the favour shown by 
andisrecon- Charles VII. to the assassins of 
cUed to the his father, kept him for many 

* It is a current piece of history, that Agnes So- 
rel, mistress of Charles VII., had the merit of dis- 
suading him from giving up the kingdom as lost, 
at the time when Orleans was besieged in 1428. 
Mezeray, Daniel, Villaret, and, I believe, every oth- 
er modern historian, have mentioned this circum- 
stance ; and some of them, among whom is Hume, 
with the addition, that Agnes threatened to leave 
the court of Charles for that of Henry, affirming 
that she was born to be the mistress of a great 
king. The latter part of this tale is evidently a 
fabrication, Henry VI. being at the time a child of 
seven years old. But I have, to say the least, great 
doubts of the main story. It is not mentioned by 
contemporary writers. On the contrary, what they 
say of Agnes leads me to think the dates incompat- 
ible. Agnes died (in childbed, as some say) m 
1450 ; twenty-two years after the siege of Orleans. 
Monstrelet says that she had been about five years in 
the service of the queen ; and the king taking pleas- 
ure in her hveliness and wit, common fame had 
spread abroad that she lived in concubinage with 
him. She certainly had a child, and was willing 
that it should be thought the king's; but he always 
denied it, et le pouvoit bien avoir emprunte ailleurs. 
— Pt. iii., f 25. Olivier de la Marche, another 
contemporary, who lived in the court of Burgundy, 
says, about the year 1444, le Roy avoit nouvelle- 
ment esleve une pauvre demoiselle, gentifemme, 
nommee Agnes Sorel, et mis en tel tnumphe et tel 
pouvoir, que son estat estoit a comparer aux grandes 
princesses de Royaume, et certes c'estoit une des 
plus belles femmes que je vey oncques, et fit en sa 
qualite beaucoup au Royaume de France. EUe 
avancoit devers le Roy Junes gens d'armes, et gen- 
tils compaignons, et dont le Roy depuis fut bien 
servy.— La Marche. Mem. Hist., t. viii., p. 145. 
Du Clercq, whose memoirs were first published in 
the same collection, says, that Agnes mourut par 
poison moult jeune. — lb., t. viii., p. 410. And the 
continuator of Monstrelet, probably John Chartier, 
speaks of the youth and beauty of Agnes, which 
exceeded that of any other woman in France, and 
of the favour shown her by the king, which so much 
excited the displeasure of the dauphin, on his moth- 
er's account, that he was suspected of having caused 



years on the English side, al- Duke of 
though rendering it less and less burgundy, 
assistance. But at length he concluded a 
treaty at Arras, the terras of which he dic- 
tated rather as a conqueror, than as a sub- 
ject negotiating with his sovereign. [A. D. 
1435.] Charles, however, refused nothing 
for such an end ; and, in a very short time, 
the Burgundians were ranged with the 
French against their old allies of England. 
It was now time for the latter to aban- 
don those magnificent projects impolicy of 
of conquering France, which the English, 
temporary circumstances alone had seem- 
ed to render feasible. But as it is a nat- 
ural effect of good fortune in the game of 
war to render a people insensible to its 
gradual change, the English could not 
persuade themselves that their affairs 
were irretrievably declining. Hence 
they rejected the offer of Normandy and 
Guienne, subject to the feudal superiority 
of France, which was made to them at 
the congress of Arras ;* and some years 

her to be poisoned.— Fol. 68. The same writer af- 
firms of Charles VII. that he was, before the peace 
of Arras, de moult belle vie et devote ; but after- 
ward enlaidit sa vie de tenir malles femmes en 
son hostel, &c., fol. 86. 

It is for the reader to judge how far these passa- 
ges render it improbable that Agnes Sorel was 
the mistress of Charles VII. at the siege of Orleans 
in 1428, and, consequently, whether she is entitled 
to the praise which she has received, of being in- 
strumental in the deliverance of France. The tra- 
dition, however, is as ancient as Francis I., who 
made in her honour a quatrain which is well known. 
This probably may have brought the story more 
into vogue, and led Mezeray, who was not very 
critical, to insert it in his history, from which it has 
passed to his followers. Its origin was apparently 
the popular cha acter of Agnes. She was the Nell 
Gwyn of France ; and justly beloved, not only foi 
her charity and courtesy, but for bringing forward 
men of merit, and turning her influence, a virtue 
very rare in her class, towards the public interest. 
From thence it was natural to bestow upon her, in 
after-times, a merit not ill suited to her character, 
but which an accurate observation of dates seems 
to render impossible. But whatever honour 1 am 
compelled to detract from Agnes Sorel, I am wil- 
ling to transfer undiminished to a more unblemish- 
ed female, the injured queen of Charles VII., Mary 
of Anjou, who has hitherto only shared with the 
usurperof her rights thecredit of awakening Charles 
from his lethargy. Though I do not know on what 
foundation even this rests, it is not unlikely to be 
true, and, in deference to the sex, let it pass undis- 
puted. 

* Villaret says, Les plenipotentiaires de Charles 
ofiTrirent la cession de la Normandie et de la Gui- 
enne en toute prnpriiti, sous la clause de t'hommage a 
la conronne, t. XV., p. 174. But he does not quote 
his authority, and I do not like to rely on an histo- 
rian not eminent for accuracy in fact, or precision in 
language. If his expression is correct, the French 
must have given up the feudal appeal, or ressort, 
which had been the great point in dispute between 
Edward III. and Charles V., preserving only a 
homage per paragium, as it was called, which im 



Part II ] 



FRANCE. 



55 



afterward, when Paris, with the adjacent 
provinces, had been lost, the English am- 
bassadors, though empowered by their 
private instructions to relax, stood upon 
demands quite disproportionate to the ac- 
tual position of affairs.* As foreign ene- 
mies, they were odious even in that part 
of France which had acknowledged to 
Henry ;t and when the Duke of Burgundy 
deserted their side, Paris and every other 
city were impatient to throw off the yoke. 
A feeble monarchy and a selfish council 
They lose Completed their ruiu : theneces- 
aii their sary subsidies were raised with 
conquests, difficulty [A. D. U49], and, when 
raised, misapplied. It is a proof of 
the exhaustion of France, thai Charles 
was unable, for several years, to reduce 
Normandy or Guienne, which were so 
ill provided for defence.^ At last he 
came with collected strength to the con- 
test, and, breaking an armistice upon 
slight pretences, within two years over- 
whelmed the EngUsh garrisons in each 
of these provinces. All the inheritance 
of Henry H. and Eleanor, all the con- 
quests of Edward HI. and Henry V., ex- 
cept Calais and a small adjacent district, 
were irrecoverably torn from the crown 
of England. A barren title, that idle tro- 
phy of disappointed ambition, was pre- 
served, with sti-ange obstinacy, to our 
own age. 

In these second English wars, we find 
Conditioa little left of that generous feel- 
of France jj^g which had, in general, dis- 
seroMdEn- tinguished the contemporaries 
giishwars. of Edward III. The very vir- 
tues which a slate of hostility promotes 
are not proof against its long continuance, 
and sink at last into brutal fierceness. 
Revenge and fear excited the two fac- 
tions of Orleans and Burgundy to all 
atrocious actions. The troops serving 
under partisans on detached expeditions, 
according to the system of the war, lived 
at free quarters on the people. The his- 
tories of the time are full of their outrages, 
from which, as is tlje common case, the 
unprotected peasantry most suffered.^ 

plied uo actual supremacy. Monstrelet says only, 
que per certaines conditions luy seroient accordees 
les seigneuries de Guienne et Normandie. 

* See the instructions given to the English ne- 
gotiators in 1439, at length, in Ryiner, t. x., p. 724. 

t Villaret, t. xiv., p. 448. 

X Amelgard, from whose unpublished memoirs 
of Charles VII. and Louis XI. some valuable e.;c- 
tracts are made in the Notices des Manuscrits, t. i., 
p. 403, attributes the delay in recovering Norman- 
dy solely to the king's slothfulness and sensuality. 
In fact, the people of that province rose upon the 
English, and almost emancipated themselves, with 
little aid from Charles. 

^ Monstrelet, passim. A long metrical corn- 



Even those laws of war, wliich the cour- 
teous sympathies of chivalry had enjoin- 
ed, Avere disregarded by a merciless fury. 
Garrisons surrendering after a brave de- 
fence were put to death. Instances of 
this are very frequent. Henry V. ex- 
cepts Alain Blanchard, a citizen who had 
ditinguished himself during the siege, 
from the capitulation of Rouen, and or- 
ders him to execution. At the taking of 
a town of Champagne, John of Luxem- 
burg, the Burgundian general, stipulates 
that every fourth and sixth man should 
be at his discretion ; which he exercises 
by causing them all to be hanged.* Four 
hundred English from Pontoise, stormed 
by Charles VII., in 1441, are paraded in 
chains and naked through the streets of 
Paris, and thrown afterward into the 
Seine. This infamous action cannot but 
be ascribed to the king.f 

At the expulsion of the English, France 
emerged from the chaos with subsequent 
an altered character and new events m 
features of government. The '''"•:'"" ".C 
royal authority and supreme '"""' 
jurisdiction of the parliament were uni- 
versally recognised. Yet there was a 
tendency towards insubordination left 

plaint of the people of France, curious as a speci 
men of versification, as well as a testimony to the 
misfortunes of the time, may be found in this his- 
torian. — Part i., fol. 321. Notwithstanding the 
treaty of Arras, the French and Burgundians made 
continual incursions upon each other's frontiers, 
especially about Laon and in the Vermandois. 
So that the people had no help, says Monstrelet, 
si non de crier miserableinent a Dieu leur createur 
vengeance ; et que pis estoit, quand ils obtenoient 
aucun sauf-conduit d'aucuns capitaines peu en es- 
toit entretenu, mesmement tout d'un parti.— Pt. ii., 
f. 139. These pillagers were called Ecorcheurs, 
because they stripped the people of their shirts. 
And this name superseded that of Annagnacs, by 
which one side had hitherto been known. Even 
Xaintrailles and La Hire, two of the bravest cham- 
pions of France, were disgraced by these habits 
of outrage.— Ibid., fol. 144, 150, 175. Oliv. de la 
Marche, in Collect, des Memoires, t. viii., p. 25 ; t 
v., p. 323. 

Pour la plupart, says Villaret, se faire guerrier, 
ou voleur de grands chemins, signifioit la meme 
chose 

* Monstrelet, part ii., f. 79. This John of Lux- 
emburg, count de Ligny, was a distinguished cap- 
tain on the Burgundian side, and for a long time 
would not acquiesce in the treaty of Arras. He 
disgraced himself by giving up to the Duke of 
Bedford his prisoner Joan of Arc for 10,000 francs. 
The famous Count of St. Pol was his nephew, and 
inherited his great possessions in the county of 
Vermandois. Monstrelet relates a singular proof 
of the good education which his uncle gave him. 
Some prisoners having been made in an engage- 
ment, si fut le jeune Comte de St. Pol mis en voye 
de guerre; car le Comte de Ligny son oncle luy 
en feit occire aucuns, le quel y prenoit grand plai- 
sir, part ii., fol. 95. 

t Villaret, t. xv., p. 327. 



56 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 



among the great nobility, arising in part 
from the remains of old feudal privileges, 
but still more from that lax administra- 
tion, which, in the convulsive struggles 
of the war, had been suffered to prevail. 
In the south were some considerable vas- 
sals, the houses of Foix, Albret, and Ar- 
magnac, who, on account of their dis- 
tance from the seat of empire, had al- 
ways maintained a very independent con- 
duct. The dukes of Britany and Bur- 
gundy were of a more formidable charac- 
ter, and might ratlier be ranked among 
foreign powers than privileged subjects. 
The princes, too, of the royal blood, who, 
during the late reign, had learned to par- 
take or contend for the management, were 
ill inclined towards Charles Vll., himself 
jealous, from old recollections, of their 
ascendency. They saw that the consti- 
tution was verging rapidly towards an 
absolute monarchy, from the direction of 
which they would studiously be excluded. 
This apprehension gave rise to several 
attempts at rebellion during the reign of 
Charles VII., and to the war, commonly 
entitled, for the Public Weal (du bien pub- 
lic), under Louis XI. Among the preten- 
ces alleged by the revolters in each of 
these, the injuries of the people were 
not forgotten ;* but from the people they 
received small support. Weary of civil 
dissension, and anxious for a strong gov- 
ernment to secure them from depredation, 
the French had no inducement to intrust 
even their real grievances to a few male- 
content princes, whose regard for the 
common good they had much reason to 
distrust. Every circumstance favoured 
Charles VII. and his son in the attainment 
of arbitrary power. The country was 
pillaged by military ruffians. Some of 
these had been led by the dauphin to a 
war in Germany, but the remainder still 
infested the high roads and villages. 
Charles established his companies of or- 
donnance, the basis of the French regular 
army, in order to protect the country 
from such depredators. They consisted 
of about nine thousand soldiers, all cav- 
alry, of whom fifteen hundred were hea- 
vy-armed ; a force not very considerable, 



* The confederacy formed at Nevers in 1441, 
by the dukes of Orleans and Bourbon, with many 
other princes, made a variety of demands, all rela- 
ting to the grievances which different classes of 
the state, or individuals among themselves, suffer- 
ed under the administration of Charles. These 
may be found at length ui Monstrelet, p. li., f. 193 ; 
and are a curious document of the change which 
was then working in the French constitution. In 
his answer, the king claims the right, in urgent 
cases, of levying taxes without waiting for the con- 
sent of the States General. 



but the first, except mere body-guards, 
which had been raised in any part of 
Europe as a national standing army.* 
These troops were paid out of the pro- 
duce of a permanent tax, called the taille ; 
an innovation still more important than 
the former. But the present benefit 
cheating the people, now prone to sub- 
missive habits, little or no opposition was 
made ; except in Guienne, the inhabi- 
tants of which had speedy reason to re- 
gret the mild government of England, 
and vainly endeavoured to return to its 
protection.! 

[A. D. 1401.] It was not long before the 
new despotism exhibited itself in , . ^ 
its harshest character. Louis XI., 
son of Charles VII., who, during his fa- 
ther's reign, had been connected with the 
discontented princes, came to the throne 
greatly endowed with those virtues and 
vices which conspire to the success of a 
king. Laborious vigilance in His charac- 
business, contempt of pomp, af- '"-''■• 
fabihty to inferiors, were his excellen- 
ces ; qualities especially praiseworthy in 
an age characterized by idleness, love of 



* Olivier de la Marche speaks very much in fa- 
vour of the companies of ordonnance, as having 
repressed the plunderers, and restored internal 
police. — Collection des Memoircs, t. viii., p. 148. 
Amelgard pronounces a vehement philipic against 
them ; but it is probable that his observation of the 
abuses they had fallen into was confined to the 
reiga of Louis XI. — Notices des Manuscrits, ubi 
supra. 

t The insurrection of Guienne in 1452, which 
for a few months restored that province to the Eng- 
lish crown, is accounted for in the curious me- 
moirs of Amelgard, above mentioned. It proceed- 
ed solely from the arbitrary taxes imposed by 
Charles V'll. in order to defray the expenses of his 
regular army. The people of Bordeau.x complain- 
ed of exactions not only contrary to their ancient 
privileges, but to the positive conditions of their 
capitulation. But the king was deaf to such re- 
monstrances. The province of Guienne, he says, 
then perceived that it was meant to subject it to 
the same servitude as the rest of France, where 
the leeches of the state boldly maintain, as a fun- 
damental maxim, that the king has a right to tax 
all his subjects, how and when he pleases ; which 
is to advance that in France no man has any thing 
that he can call his own, and that the king can 
take all at his pleasure ; the proper condition of 
slaves, whose peculium, enjoyed by their master's 
permission, belongs to him, like their persons, and 
may be taken away whenever he chooses. Thus 
situated, the people of Guienne, especially those 
of Bordeaux, alarmed themselves, and excited by 
some of the nobility, secretly sought about for 
means to regain their ancient freedom ; and hav- 
ing still many connexions with persons of rank in 
England, they negotiated with them, &c. — No- 
tices des Manuscrits, p. 433. The same cause is 
assigned to this revolution by Du Clercq, also a con- 
temporarv writer, living in the dominions of Bur- 
gundy.— Collection des Memoircs, t. ix., p. 400. 
Villaret has not known, or not chosen to know, 
any thing of the matter. 



Part II.] 



FRANCE. 



57 



pageantry, and insolence. To these vir- 
tues he added a perfect knowledge of all 
persons eminent for talents or influence 
in the countries with which he was con- 
nected, and a well-judged bounty, that 
thought no expense wasted to draw them 
into his service or interest. In the fif- 
teenth century this political art had hard- 
ly been known, except perhaps in Italy ; 
tiie princes of Europe had contended with 
each other by arms, sometimes by treach- 
ery, but never with such complicated 
subtlety of intrigue. Of that insidious 
cunning, which has since been brought 
to perfection, Louis XI. may be deemed 
not absolutely the inventor, but the most 
eminent improver; and its success has 
led perhaps to too higli an estimate of his 
abihties. Like most bad men, he some- 
times fell into his own snare, and was be- 
trayed by his confidential ministers, be- 
cause his confidence was generally repo- 
sed in the wicked. And his dissimulation 
was so notorious, his tyranny so oppres- 
sive, that he was naturally surrounded 
by enemies, and had occasion for all his 
craft to elude those rebellions and con- 
federacies which might perhaps not have 
been raised against a more upright sov- 
ereign. At one time the monarchy was 
on the point of sinking before a combina- 
tion, which would have ended in dismem- 
bering France. [A. D. 1461.] 
nominated' This was the league denomina- 
of the Pub- ted of the Public Weal, in which 
lie Weal, ^jj ^^^ princcs and great vassals 
of the French crown were concerned : 
the dukes of Britany, Burgundy, Alen- 
gon, Bourbon, the Count of Dunois, so 
renowned for his valour in the English 
wars, the families of Foix and Armagnac ; 
and, at the head of all, Charles, duke of 
Berry, the king's brother and presumptive 
heir. So unanimous a combination was 
not formed without a strong provocation 
from the king, or at least without weighty 
grounds for distrusting his intentions ; but 
the more remote cause of this confeder- 
acy, as of those which had been raised 
against Charles VII., was the critical po- 
silioii of the feudal aristocracy from the 
increasing power of the crown. This 
war of the Public Weal was in fact a 
struggle to preserve their independence ; 
and from the weak character of the Duke 
of Berry, whom they would, if successful, 
have placed upon the throne, it is possi- 
ble that France might have been in a 
manner partitioned among them, in the 
event of their success, or at least that Bur- 
gmidy and Britany would liave thrown 
off the sovereignty that galled them. 
The strength of the confederates in 



this war much exceeded that of the king ; 
but it was not judiciously employed, and, 
after an indecisive battle at Montlhery, 
they failed in the great object of reducing 
Paris, which would have obliged Louis to 
fly from his dominions. It was his policy 
to promise every thing, in trust tliat for- 
tune would afl"ord some opening to repair 
his losses, and give scope to his superior 
prudence. Accordingly, by the treaty of 
Conflans, he not only surrendered afresh 
the towns upon the Somme, which he had 
lately redeemed from the Duke of Bur- 
gundy, but invested liis brother with the 
dutchy of Normandy as his appanage. 

The term appanage denotes tlie provis- 
ion made for the younger chil- ^ 

1 ^ 1 ■ r Ti mu- Appanages. 

dren of a kmg of I ranee. 1 his "^ ° 
always consisted of lands and feudal su- 
periorities held of the throne by tlie te- 
nure of peerage. It is evident that this 
usage, as it produced a new class of 
powerful feudatories, was hostile to the 
interests and policy of the sovereign, and 
retarded the subjugation of the ancient 
aristocracy. But a usage coeval with the 
monarchy was not to be abrogated, and 
the scarcity of money rendered ii impos- 
sible to provide for the younger branches 
of the royal family by any other means. 
It was restrained, however, as far as cir- 
cumstances would permit. Philip IV. 
declared that the county of Poitiers, be- 
stowed by him on his son, should revert 
to the crown on the extinction of male 
heirs. But this, though an important pre- 
cedent, was not, as has often been assert- 
ed, a general law. Charles V. limited 
the appanages of his own sons to twelve 
thousand livres of annual value in land. 
By means of their appanages, and through 
the operation of the Salique-law, which 
made their inheritance of the crown a 
less remote contingency, the princes of 
the blood royal in France were at all 
times (for the remark is applicable long 
after Louis XI.) a distinct and formidable 
class of men, whose influence was always 
disadvantageous to the reigning monarch, 
and, in general, to the people. 

No appanage had ever been granted in 
France so enormous as the dutchy of Nor- 
mandy. One third of the whole nation- 
al revenue, it is declared, was derived 
from that rich province. Louis could not 
therefore sit down under such terms as, 
with his usual insincerity, he had accept- 
ed at Conflans. In a very short time he 
attacked Normandy, and easily compell- 
ed his brother to take refuge in Britany ; 
nor were his enemies ever able to pro- 
cure the restitution of Charles's appanage. 
During the rest of his reign, Louis had 



68 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I. 



powerful coalitions to withstand ; but his 
prudence and compliance with circum- 
stances, joined to some mixture of good 
fortune, brought him safely through his 
perils. The Duke of Britany, a prince of 
moderate talents, was unable to make 
any formidable impression, though gen- 
erally leagued with the enemies of the 
king. The less powerful vassals were 
successfully crushed by Louis with deci- 
sive vigour : the dutchy of Alen^on was 
confiscated ; the Count of Armagnac was 
assassinated ; the Duke of Nemours, and 
the Constable of St. Pol, a politician as 
treacherous as Louis, who had long be- 
trayed both him and tlie Duke of Burgun- 
dy, suffered upon the scaffold. The king's 
brother, Charles, after disquieting him 
for many years, died suddenly in Guienne 
[A. D. 1472], which had finally been grant- 
ed as his appanage, with strong suspicions 
of having been poisoned by the king's 
contrivance. Edward IV. of England 
was too dissipated and too indolent to be 
fond of war; and, though he once en- 
tered France [A. D. 1475] with an army 
more considerable than could have been 
expected after such civil bloodshed as 
England had witnessed, he was induced, 
by the stipulation of a large pension, to 
give up the enterprise.* So terrible was 
still in France the apprehension of an 
English war, that Louis prided himself 
upon no part of his policy so much as the 
warding this blow. Edward showed a 
desire to visit Paris ; but the king gave 
him no invitation, lest, he said, his broth- 
er should find some handsome women 
there, who might tempt him to return in 
a different manner. Hastings, Howard, 
and others of Edward's ministers, were 
secured by bribes in the interest of Louis, 
which the first of these did not scruple to 
receive at the same time from the Duke 
of Burgundy.f 

This was the most powerful enemy 
House of whom the craft of Louis had to 
Burgundy, counteract. In the last days of 

* The army of Edward consisted of 1500 men at 
arms, and 14,000 archers ; the whole very well ap- 

Cointed.— Comines, t. xi., p. 238. There seems to 
ave been a great expectation of what the EngUsh 
would do, and great fears entertained by Louis, 
who grudged no expense to get rid of them. 

f Comines, 1. vi., c. 2. Hastings had the mean 
cunning to refuse to give his receipt for the pen- 
sion he took from Louis XI. " This present," he 
said to the king's agent, "comes from your mas- 
ter's good pleasure, and not at my request ; and if 
you mean I should receive it, you may put it here 
into my sleeve, but you shall have no discharge 
from me ; for I will not have it said that the Great 
Chamberlain of England is a pensioner of the King 
of France, nor have my name appear in the books 
of the Chambre des Comptes." — Ibid, 



the feudal system, when the house of 
Capet had almost achieved the subjuga- 
tion of those proud vassals among whom 
it had been originally number- itggucces- 
ed, a new antagonist sprung up sive acijuisi- 
to dispute the field against the "°"®- 
crown. John, king of France, granted 
the dutchy of Burgundy by way of appa- 
nage to his third son, Philip. By his 
marriage witli Margaret, heiress of Louis, 
count of Flanders, Philip acquired that 
province, Artois, the county of Burgundy 
(or Franche-comte), and the Nivernois. 
Philip the Good, his grandson, who car- 
ried the prosperity of this family to its 
height, possessed himself, by various ti- 
tles, of the several other provinces which 
composed the Netherlands. These were 
fiefs of the empire, but latterly not much 
dependant upon it, and alienated by their 
owners without its consent. At the peace 
of Arras, the districts of Macon and Aux- 
erre were absolutely ceded to Philip, and 
great part of Picardy conditionally made 
over to him, redeemable on the pay- 
ment of four hundred thousand crowns.* 
These extensive, though not compact do- 
minions, were abundant in population and 
wealth, fertile in corn, wine, and salt, and 
full of commercial activity. Thirty years 
of peace which followed the treaty of Ar- 
ras, with a mild and free government, 
raised the subjects of Burgundy to a de- 
gree of prosperity quite unparalleled in 
these times of disorder ; and this was dis- 
played in general sumptuousness of dress 
and feasting. The court of Philip and his 
son Charles was distinguished for its 
pomp and riches, for pageants and tour- 
naments ; the trappings of chivalry, per- 
haps without its spirit : for the military 

* The Duke of Burgundy was personally excused 
from all homage and service to Charles VII. ; but, 
if either died, it was to be paid by the heir, or to 
the heir. Accordingly, on Charles's death, Philip 
did homage to Louis. This exemption can hardly 
therefore have been inserted to gratify the pride of 
Philip, as historians suppose. Is it not probable 
that, during his resentment against Charles, he 
might have made some vow never to do him hom- 
age, which this reservation in the treaty was in- 
tended to preserve ? 

It is remarkable that Villaret says, the Duke of 
Burgundy was positively excused by the 25th ar- 
ticle of the peace of Arras from doing homage to 
Charles, or his successors kings of France, t. xvi., p. 
404. For this assertion too he seems to quote the 
Tresor des Chartes, where probably the original 
treaty is preserved. Nevertheless, it appears other- 
wise, as published by Monstrelet at full length, 
who could have no motive to falsify it ; and Phil 
ip's conduct in doing homage to Louis is hardly 
compatible with Villaret's assertion. Daniel cop- 
ies Monstrelet without any observation. In the 
same treaty, Philip is entitled Duke by the grace of 
God ; which was reckoned a mark of independ- 
ence, and not usually permitted to a vassal. 



Part II.] 



FRANCE. 



50 



character of Burgundy had been impaired 
by long tranquiUity.* 

During the Uves of Phihp and Charles 
Character VII., each Understood the other's 
of Charles, rank, and their amity was little 
Duke of interrupted. But their succes- 
urgun y- gQi-f;^ tj\g niost opposite of hu- 
man kind in character, had one common 
quality, ambition, to render their antipa- 
thy more powerful. Louis was eminently 
timid and suspicious in policy ; Charles 
intrepid beyond all men, and blindly pre- 
sumptuous : Louis stooped to any humili- 
ation to reach his aim ; Charles was too 
haughty to seek the fairest means of 
strengthening his party. An alliance of 
his daughter with the Duke of Guienne, 
brother of Louis, was what the malecon- 
tent French princes most desired, and 
the king most dreaded ; but Charles, 
either averse to any French connexion, 
or willing to keep his daughter's suit- 
ers in dependance, would never directly 
accede to that, or any other proposition 
for her marriage. On Philip's death, in 
1467, he inherited a great treasure, which 
he soon wasted in the prosecution of his 
schemes. These were so numerous and 
vast, that he had not time to live, says 
Comines, to complete them, nor would 
one half of Europe have contented him. 
It was his intention to assume the title 
of king ; and the Emperor Frederick III. 
was at one time actually on his road to 
confer this dignity, when some suspicion 
caused him to retire ; and the project was 
never renewed. f It is evident that, if 
Charles's capacity had borne any propor- 
tion to his pride and courage, or if a prince 
less politic than Louis XI. had been his 
contemporary in France, the province of 
Burgundy must have been lost to the 
monarchy. For several years these 
great rivals were engaged, sometimes in 
open hostility, sometimes in endeavours 
to overreach each other; but Charles, 
though not much more scrupulous, was 



* P. de Comines, 1. i., c. 2 and 3 ; 1. v., c. 9. Du 
Clercq, in Collection des Memoires, t. ix., p. 389. 
In the investiture granted by John to the first Phil- 
ip of Burgundy, a reservation is made, that the roy- 
al taxes shall be levied throughout that appanage. 
But during the long hostility between the kingdom 
and dutchy, this could not have been enforced : 
and by the treaty of Arras, Charles surrendered all 
right to tax the duke's dominions. — Monstrelet, f. 
J 14. 

t Gamier, t. xviii., p. 62. It is observable that 
Comines says not a word of this ; for which Gar- 
nier seems to quote Belcarius, a writer ofthe six- 
teenth age. But even Philip, when Morvilliers, 
Louis's chancellor, used menaces towards him, in- 
terrupted the orator with these words : Je veux 
que chacun scache que, si j'eusse voulu, je fusse 
Toi. — Villaret, t. xvii., p. 44. 



far less an adept in these mysteries of 
politics than the king. 

Notwithstanding the power of Bur- 
gundy, there were some dis- i„su5ordina- 
advantages in its situation, tionofiue 
It presented (I speak of all f/^^'®"* 
Charles's dominions under the 
common name. Burgundy) a very ex- 
posed frontier on the side of Germany 
and Switzerland, as well as P'rance ; and 
Louis exerted a considerable influence 
over the adjacent princes of the empire, 
as well as the united cantons. The peo- 
ple of Liege, a very populous city, had 
for a long time been continually rebelling 
against their bishops, who were the allies 
of Burgundy ; Louis was of course not 
backward to foment their insurrections; 
which sometimes gave the dukes a good 
deal of trouble. The Flemings, and 
especially the people of Ghent, had been 
during a century noted for their repub- 
lican spirit and contumacious defiance of 
their sovereign. Liberty never wore a 
more unamiable countenance than among 
these burghers ; who abused the strength 
she gave them by cruelty and insoler.ce. 
Ghent, when Froissart wrote, about tho 
year 1400, was one of the strongest cities 
in Europe, and would have required, he 
says, an army of two hundred thousand 
men to besiege it on every side, so as to 
shut up all access by the Lys and Scheldt. 
It contained eighty thousand men of age 
to bear arms ;* a calculation which, al- 
though, as I presume, much exaggerated, 
is evidence of great actual populousness. 
Such a city was absolutely impregnable, 
at a time when artillery was very imper- 
fect both in its construction and manage- 
ment. Hence, though the citizens of 
Ghent were generally beaten in the field 
with great slaughter, they obtained toler- 
able terms from their masters, who knew 
the danger of forcing them to a desperate 
defence. 

No taxes were raised in Flanders, or 
indeed throughout the dominions of Bur- 
gundy, without consent of the three 
estates. In the time of Philip, not a 
great deal of money was levied upon the 
people ; but Charles obtained every year 
a pretty large subsidy, which he expend- 
ed in the hire of Italian and English mer- 
cenaries, f An almost uninterrupted suc- 

* Froissart, part ii., c. 67. 

t Comines, 1. iv., c. 13. It was very reluctantly 
that the Flemings granted any money. Philip once 
begged for a tax on salt, promising never to ask any 
thing more ; but the people of Ghent, and, in imi- 
tation of them, the whole county, refused it. — Du 
Clercq, p. 389. Upon his pretence of taking the 
cross, they granted him a subsidy, though less 
than he had requested, on condition that it should 



60 



EUROPE DURING THE MIDDLE AGES. 



[Chap. I 



cess had attended his enterprises for a 
length of time, and rendered his dispo- 
sition still more overweening. [A. D. 
1474.] His first failure was before Niiz, 
a little town near Cologne, the possession 
of which would have made him nearly 
master of the whole course of the Rhine, 
for he had already obtained the landgravir 
ate of Alsace. Though compelled to raise 
the siege, he succeeded in occupying, next 
year, the dutchy of Lorraine. But his 
overthrow was reserved for an enemy 
whom he despised, and whom none could 
have thought equal to the contest. [A. D. 
1476.] The Swiss had given him some 
slight provocation, for which they were 
ready to atone ; but Charles was unused 
to forbear ; and perhaps Switzerland 
came within his projects of conquest. 
Defeats of ^t Granson, in the Pays de 
Charles at Vaud, he was entirely routed, 
Granson with more disgrace than slaugh- 

' °'^*'" ter.* But, having reassembled 
his troops, and met the confederate army 
of Swiss and Germans at Morat, near Fri- 
burg, he was again defeated with vast 
loss. On this day the power of Bur- 
gundy was dissipated: deserted by his 
alhes, betrayed by his mercenaries, he 
set his life upon another casr at Nancy, 
desperately giving battle to the Duke of 
Hs d th Lorraine with a small dispirited 
army, and perished in the en- 
gagement. [A. D. 1477.] 

Now was the moment when Louis, 
Claim of who had held back while his 
Louis XI. to enemy was breaking his force 
si'onoirBur- against the rocks of Switzer- 
gundy. land, came to gather a harvest 
which his labour had not reaped. Charles 

not be levied if the crusade did not take place, 
which put an end to the attempt. The states 
knew well that the duke would employ any money 
they gave him in keeping up a body of gens d'armes 
like his neighbour, the King of France ; and though 
the want of such a force exposed their country to 
pillage, they were too good patriots to place the 
means of enslaving it in the hands of their sover- 
eign. Grand doute faisoient les sujets, et pour 
plusieursraisons, dese mettre en cette sujetion, ou 
ils voyoient le royaume de France, a cause de ses 
gens d'armes. A la verite, leur grand doute n'es- 
toit pas sans cause : car quand il se trouva cinq 
cens hommes d'armes, la volonte luy vint d'en 
avoir plus, et de plus hardiment entreprendre con- 
tre tous ses voisins. — Comines, 1. iii., c. 4, 9. 

Du Clercq, a contemporary writer of very good 
authority, mentioning the story of a certain widow 
who had remarried the day after her husband's 
death, says that she was in some degree excusa- 
ble, because it was the practice of the duke and 
his officers to force rich widows into marrying 
their soldiers or other servants, t. ix., p. 418. 

* A famous diamond, belonging to Charles of 
Burgundy, was taken in the plunder of his tent by 
,ne Swiss at Granson. After several changes of 
owners, most of whom were ignorant of its value, 



left an only daughter, undoubted heiress 
of Flanders and Artois, as well as of his 
dominions out of France ; but whose 
right of succession to the dutchy of Bur- 
gundy was more questionable. Origi 
nally, the great fiefs of the crown de- 
scended to females ; and this was the 
case with respect to the two first men- 
tioned. But John had granted Burgundy 
to his son Phihp by way of appanage; 
and it was contended that appanages re- 
verted to the crown in default of male 
heirs. In the form of Philip's investi- 
ture, the dutchy was granted to him and 
his lawful heirs, without designation of 
sex. The construction, therefore, must 
be left to the established course of law. 
This, however, was by no means ac- 
knowledged by Mary, Charles's daughter, 
who maintained, both that no general law 
restricted appanages to male heirs, and 
that Burgundy had always been consider- 
ed as a feminine fief, John himself having 
possessed it, not by reversion as king (for 
descendants of the first dukes were then 
living), but by inheritance derived through 
females.* Such was this question of suc- 
cession between Louis XI. and Mary of 
Burgundy, upon the merits of whose pre- 
tensions I will not pretend altogether to 
decide ; but shall only observe, that if 
Charles had conceived his daughter to 
be excluded from this part of his inherit- 
ance, he would probably, at Conflans 
or Peronne, where he treated upon the 
vantage-ground, have attempted at least 
to obtain a renunciation of Louis's claim. 
There was one obvious mode of pre- 
venting all further contests, and of conduct 
aggrandizing the French monar- oii.ouia. 
chy far more than by the reunion of Bur- 
gundy. This was the marriage of Mary 
with the dauphin, which was ardently 

it became the first jewel in the French crown.— 
Gamier, t. xviii., p. 361. 

* It is advanced with too much confidence by 
several French historians, either that the ordinan- 
ces of Philip IV. and Charles V. constituted a 
general law against the descent of appanages to 
female heirs, or that this was a fundamental law 
of the monarchy. — Du Clos, Hist, de Louis XI., 
t. ii., p. 252. Gamier, Hist, de France, t. xviii., 
p. 258. The latter position is refuted by frequent 
instances of female succession ; thus Artois had 
passed by a daughter of Louis le Male into the 
house of Burgundy. As to the above-mentioned 
ordinances, the first applies only to the county of 
Poitiers ; the second does not contain a syllable 
that relates tosuccession. — (Ordonnancesdes Kois, 
t. vi., p. 54.) The doctrine of excluding I'einale 
heirs was more consonant to the pretended Salique- 
law, and the recent principles as to inalienability of 
domain, than to the analogy of feudal rules and 
precedents. M. Gaillard, in his Observations sur 
I'Histoire de Velly, Villaret,et Gamier, has a judi- 
cious note on this subject, t. iii., p. 304. 



Part II] 



FRANCE. 



61 



wished in France Whatever obstacles 
might occur to this connexion, it was nat- 
ural to expect on the opposite side ; from 
Mary's repugnance to an infant husband, 
or from the jealousy which her subjects 
were likely to entertain, of being incor- 
porated with a country worse governed 
than their own. The arts of Louis would 
have been M'ell employed in smoothing 
these impediments.* But he chose to 
seize upon as many towns as, in those 
critical circumstances, lay exposed to 
him, and stripped the young dutchess of 
Artois and Franche Comtti. Expecta- 
tions of tlie marriage he sometimes held 
out, but, as it seems, without sincerity. 
Indeed, he contrived irreconcilably to 
alienate Mary by a shameful perfidy, be- 
traying the ministers whom she had in- 
trusted upon a secret mission to the peo- 
ple of Ghent, who put them to the torture, 
and afterward to death, in the presence 
and amid the tears and supplications of 
their mistress. [A. D. 1477.] Thus the 
French alliance' becoming odious in 
France, this princess married Maximilian 
of Austria, son of the Emperor Frederick ; 
a connexion which Louis strove to pre- 
vent, though it was impossible then to 
foresee that it was ordained to retard the 
growth of France, and to bias the fate 
of Europe during three hundred years. 
This war lasted till after the death of 
Mary, who left one son, Philip, and one 
daughter, Margaret. By a treaty of peace 
concluded at Arras in 1482, it was agreed 
that this daughter should become the 
dauphin's wife, with Franche Comte and 
Artois, which Louis held already for her 
dowry, to be restored in case the marriage 
should not take effect. The homage of 
Flanders, and appellant jurisdiction of 
the parUament over it, were reserved to 
the crown. 

Meanwhile Louis was lingering in dis- 
Sickness ^ase and torments of mind, the 
and death of retribution of fraud and tyranny. 
Louis XI. rji^Q years before his death he 
was struck with an apoplexy, from which 

* Robertson, as well as some other moderns, 
have maintained, on the authority of Comines, that 
Louis XI. ought in policy to have married the 
young princess to the Count of Angouleme, father 
of Francis I., a connexion which she would not have 
disliked. But certainly nothing could have been 
more adverse to the interests of the P'rench mon- 
archy than such a marriage, which would have 
put a new house of Burgundy at the head of those 
princes whose confederacies had so often endan- 
gered the crown. Comines is one of the most ju- 
dicious of historians ; but his sincerity may be rath- 
er doubtful in the opinion above mentioned ; for he 
wrote in the reign of Charles VIII., when the Count 
of Angouleme was engaged in the same faction as 
himself. 



he never wholly recovered. As he felt 
his disorder increasing, he shut himf,elf up 
in a palace near Tours, to hide from the 
world the knov/ledge of his decline.* His 
solitude was like that of Tiberius at Ca- 
preaj, full of terror and suspicion, and deep 
consciousness of universal hatred. All 
ranks, he well knew, had their several 
injuries to remember : the clergy, whose 
liberties he had sacrificed to the see of 
Rome, by revoking the Pragmatic Sanc- 
tion of Charles YIl. ; the princes, whose 
blood he had poured upon the scaffold ; 
the parliament, whose course of justice 
he had turned aside ; the commons, who 
groaned under his extortion, and were 
plundered by his soldiery.f The palace 
fenced with portcullises and spikes of 
iron, was guarded by archers and cross ■ 
bow men, who shot at any that approach 
ed by night. Few entered this den ; but 
to them he showed himself in magnifi- 
cent apparel, contrary to his former cus- 
tom, hoping thus to disguise the change 
of his meager body. He distrusted his 
friends and kindred, his daughter and his 
son, the last of whom he had not suffered 
even to read or write, lest he should too 
soon become his rival. No man ever so 
much feared death, to avert which he 
stooped to every meanness, and sought 
every remedy. His physician had sworn 
that, if he were dismissed, the king would 
not survive a week ; and Louis, enfee- 
bled by sickness and terror, bore the 
rudest usage from this man, and endeav- 
oured to secure his services by vast 
rewards. Always credulous in relics, 
though seldom restrained by superstition 
from any crime,J he eagerly bought up 

*• For Louis's ilbiess and death, see Comines, 
1. vi., c. 7-12, an Gamier, t. xix., p. 112, &c. 
Plessis, his last residence, about an English mile 
from Tours, is now a dilapidated farmhouse, and 
can never have been a very large building. The 
vestiges of royalty about it are few ; but the prin- 
cipal apartments have been destroyed, either in 
the course of ages or at the revolution. 

t See a remarkable chapter in Philip de Co- 
mines, 1. iv., c. 19, wherein he tells us that Charles 
VII. had never raised more than 1,800,000 francs a 
year in taxes; but Louis XI., at the time of his 
death, raised 4,700,000, exclusive of some military 
impositions ; et surement c'estoit compassion de 
voir et scavoir la pauvreto du peuple. In this 
chapter he declares his opinion that no king can 
justly levy money on his subjects without their 
consent, and repels all common arguments to the 
contrary. 

t An exception to this was when he swore by 
the cross of St. Lo, after which he feared to vio- 
late his oath. The Constable of St. Pol, whom 
Louis invited with many assurances to court, be- 
thought himself of requiring this oath before h» 
trusted his promises, whicii the king refused ; and 
St. Pol prudently staved away. Gam., t. xviii., p 
72. Some report that he had a similar respect for 



62 



EUROPE DURING THE MIDDLE AGES. 



[Chap. L 



treasures of this sort, and even procured 
a Calabrian hermit, of noted sanctity, to 
journey as far as Tours in order to re- 
store his liealth. Philip de Comines, 
■who attended him during this infirmity, 
draws a parallel between the torments 
he then endui td and those he had for- 
merly inflicted on others. Indeed, the 
whole of his life was vexation of spirit. 
" I have known him (says Comines), and 
been his servant in the flower of his age, 
and in the time of his greatest prosperi- 
ty ; but never did I see him without un- 
easiness and care. Of all amusements 
he loved only the chase, and hawking in 
its season. And in this he had almost 
as much uneasiness as pleasure ; for he 
rode hard, and got up early, and some- 
times went a great way, and regarded no 
weather : so that he used to return very 
weary, and almost ever in wrath with 
some one. I think that from his child- 
hood he never had any respite of labour 
and trouble to his death. And I am cer- 
tain that if all the happy days of his 
life, in which he had more enjoyment 
than uneasiness, were numbered, they 
would be found very few ; and at least 
that they would be twenty of sorrow for 
every one of pleasure."* 

Charles VIII. was about thirteen years 
Charles old when he succeeded his father 
V"i- Louis. [A. D. 1483.] Though the 
law of France fixed the majority of her 
kings at that age, yet it seems not to have 
been strictly regarded on this occasion, 
and at least Charles was a minor by nature, 
if not by law. A contest arose, therefore, 
for the i-egency, which Louis had intrusted 
to his daughter Anne, Avife of the Lord de 
Beaujeu, one of the Bourbon family. The 
Duke of Orleans, afterward Louis XII., 
claimed it as presumptive heir of the 
crown, and was seconded by most of the 
princes. Anne, however, maintained her 
ground, and ruled France for several years 
in her brother's name with singular spirit 
and address, in spite of the rebellions 
which the Orleans party raised up against 
her. These were supported by the Duke 
of Britany, the last of the great vassals of 
the crown, whose daughter, as he had no 
male issue, was the object of as many 
suiters as Mary of Burgundy. 

The dutchy of Britany was peculiarly 
Affairs of circumstauccd. The inhabitants, 
Britany. whether sprung from the ancient 
republicans of Armorica, or, as some have 
thought, from an emigration of Britons 



a leaden image of the Virgin, which he wore in his 
nat ; as alluded to by Pope : " A perjured prince a 
leaden saint revere." 
* Comines, I. vi., c. 13. 



during the Saxon invasion, had not oh* 
ginally belonged to the body of the French 
monarchy. They were governed by their 
own princes and laws ; though tributary, 
perhaps, as the weaker to the stronger, 
to the Merovingian kings.* In the ninth 
century, the dukes of Britany did hom- 
age to Charles the Bald, the right of which 
was transferred afterward to the dukes 
of Normandy. This formality, at that 
time no token of real subjection, led to 
consequences beyond the views of either 
party. For when the feudal chains, that 
had hung so loosely upon the shoulders 
of the great vassals, began to be straiten- 
ed by the dexterity of the court, Britany 
found itself drawn among the rest to the 
same centre. The old privileges of in- 
dependence were treated as usurpation ; 
the dukes were menaced with confiscation 
of their fief, their right of coining money 
disputed, their jurisdiction impaired by ap- 
peals to the parhament of Paris. How- 
ever, they stood boldly upon their right, 
and always refused to pay liege homage, 
which implied an obligation of service to 
the lord, in contradistinction to simple 
homage, which was a mere symbol of 
feudal dependance.f 

About the time that Edward III. made 
pretensions to the crown of France, a 
controversy somewhat resembling it arose 
in the dutchy of Britany, between the fam- 
ilies of Blois and Montfort. This led to 
a long and obstinate war, connected all 
along as a sort of underplot with the great 
drama of France and England. At last, 
Montfort, Edward's ally, by the defeat and 
death of his antagonist, obtained the 
dutchy, of which Charles V. soon after 
gave him the investiture. This prince and 
his family were generally inclined to Eng- 
lish connexions ; but the Bretons would 
seldom permit them to be effectual. Two 
cardinal feelings guided the conduct of 
this brave and faithful people ; the one, 
an attachment to the French nation and 
monarchy in opposition to foreign ene- 



* Gregory of Tours says, that the Bretons were 
subject to France from the death of Clovis, and 
that their chiefs were styled counts, not kings, 1. 
iv., c. 4. However, it seems clear from Nigellus, 
a writer of the life of Louis the Debonair, that they 
were almost independent in his time. There was 
even a march of the Britannic frontier which sep- 
arated it from France ; and they had a king of their 
own. It is hinted, indeed, that they had been for 
merly subject ; for, after a victory of Louis over 
them, Nigellus says, Imperio sociat perdita regna 
diu. In the next reign of Charles the Bald, Hinc- 
mar tells us, regnum undique a Paganis, et falsis 
Christianis, scilicet Britonibus, est circumscriptum, 
— Epist. 18. See, too, Capitularia Car. Calvi., A. 
D. 877, tit. 23. 

t Villaret, t. xii., p. 82 t. xv., p. 199. 



Part II.] 



FRANCE. 



63 



mies ; the other, a zeal for their own priv- 
ileges, and the family of Montfort, in oppo- 
sition to the encroachments of the crown. 
In Francis II., the present duke, the male 
line of that family was about to be ex- 
tinguished. His daughter Anne was nat- 
urally the object of many suiters, among 
whom were particularly distinguished the 
Duke of Orleans, who seems to have been 
preferred by herself; the Lord of Albret, 
a member of the Gascon family of Foix, 
favoured by the Breton nobility, as most 
likely to preserve the peace and liberties 
of their country, but whose age rendered 
liini not very 'acceptable to a youthful 
princess ; and Maximilian, king of the 
liomans. Britany was rent by factions, 
and overrun by the armies of the regent 
of France, who did not lose this opportu- 
nity of interfering with its domestic 
troubles, and of persecuting her private 
enemy, the Duke of Orleans. Anne of 
Britany, upon her father's death, finding 
no other means of escaping the addresses 
of Albret, was married, by proxy, to Max- 
imihan. [A. D. 1489.] This, however, ag- 
gravated the evils of the country, since 
France was resolved at all events to break 
off so dangerous a comiexion. And as 
Maximilian himself was unable, or took 
not sufficient pains, to relieve his betroth- 
ed wife from her embarrassments, she 
was ultimately compelled to accept the 
Marriage of hand of Charles VIII He 
Cbaries vHi. had long been engaged by the 
tothe Dutchess treaty of Arras to marry the 
" '^' daughter of Maximilian, and 
that princess was educated at the French 
court. But this engagement had not pre- 
vented several years of hostilities, and 
continual intrigues with the towns of 
Flanders against MaximiUan. The double 
injury which the latter sustained in the 
marriage of Charles with the heiress of 
Britany seemed likely to excite a pro- 
tracted contest ; but the King of France, 
who had other objects in view, and per- 
haps was conscious that he had not acted 
a fair part, soon came to an accommoda- 
tion, by which he restored Artois and 
Franche Comte. 

[A. D. 1492.] France was now consol- 
idated into a great kingdom; the feudal 
system was at an end. The vigour of 
Philip Augustus, the paternal wisdom of 
St. Louis, the policy of Philip the Fair, 
had laid the foundations of a powerful 
monarchy, which neither the arms of Eng- 
land, nor seditions of Paris, nor rebellions 
of the princes, were able to shake. Be- 
sides the original fiefs of the French 
crown, it had acquired two countries be- 
yond the Rhone which properly depend- 



ed only upon the empire, Dauphine, un- 
der Phihp of Valois, by the bequest of 
Humbert, the last of its princes ; and Pro- 
vence, under Louis XL, by that of Charles 
of Anjou.* [A. D. 1481.] Thus having 
conqueredherself,if Imayuse the phrase, 
and no longer apprehensive of any for- 
eign enemy, France was prepared, under 
a monarch flushed with sanguine ambi- 
tion, to carry her arms into other coun- 
tries, and to contest the prize of glory 
and power upon the ample theatre of 
Europe.! 

* The country now called Dauphine formed part 
of the kingdom of Aries or Provence, bequeathed 
by Rodolph III. to the Emperor Conrad il. But 
the dominion of the empire over these new acqui- 
sitions being little more than nominal, a few of the 
chief nobility converted their respective fiefs into 
independent principalities. One of these was the 
lord or dauphin of Vienne, whose family became 
ultimately masters of the whole province. Hum- 
bert, the last of these, made John, son of Philip of 
Valois, his heir, on condition that Dauphine should 
be constantly preserved as a separate possession, 
not incorporated with the kingdom of France. This 
bequest was confirmed by the Emperor Charles 
IV., whose supremacy over the province was thus 
recognised by the kings of France, though it soon 
came to be altogether disregarded. 

Provence, like Dauphine, was changed from a 
feudal dependance to a sovereignty, in the weak- 
ness and dissolution of the kingdom of Aries, about 
the early part of the eleventh century. By the 
marriage of Douce, heiress of the first line of sover- 
eign counts, with Raymond Berenger, count of 
Barcelona, in 1112, it passed into that distinguish- 
ed family. In 1167 it was occupied or usurped by 
Alfonso II., king of Arragon, a relation, but not 
heir, of the house of Berenger. Alfonso bequeath- 
ed Provence to his second son, of the same name, 
and from whom it descended to Raymond Beren- 
ger IV. This count dying without male issue in 
1245, his youngest daughter Beatrice took posses- 
sion by virtue of her father's testament. But this 
succession being disputed by other claimants, and 
especially by Louis IX., who had married her eld- 
est sister, she compromised difterences by mar- 
rying Charles of Anjou, the king's brother. The 
family of Anjou reigned in Provence, as well as in 
Naples, till the death of Joan in 1382, who, having 
no children, adopted Louis of Anjou, brother ot 
Charles V., as her successor. This second Ange- 
vin line ended in 1481 by the death of Charles III., 
though Renier, duke of Lorraine, who was de- 
scended through a female, had a claim which it 
does not seem easy to repel by argument. It was 
very easy, however, for Louis XI., to whom Charles 
III. had bequeathed his rights, to repel it by force, 
and accordingly he took possession of Provence, 
which was permanently united to the crown by let- 
ters patent of Charles VIII. in 1486.t 

t The principal authority, exclusive of original 
writers, on which I have relied for this chapter, is 
the history of France by Velly, Villaret, and Gar- 
nier ; a work which, notwithstanding several de- 
fects, has absolutely superseded those of Mezeray 
and Daniel. The part of the Abbe Velly comes 
down to the middle of the eighth volume (12mo. 
edition), and of the reign of Philip de Valois. His 
continuator Villaret was interrupted by death in 
the seventeenth volume, and in the reign of Louis 

} Art de verifier leg Dates, t. iJ., p. 415. Garuier, t. ziz., pp. 57, 471 



64 



EUROPE DURING THE MIDDLE AGES. 



rCiUF. U, 



CHAPTER II. 



ON THE FEUDAL SYSTEM, ESPECIALLY IN FRANCE. 



PART L 

State of Ancient Germany.— Effects of the Con- 
quest of Gaul by the Franks. — Tenures of Land. 
— Distinction of Laws. — Constitution of the an- 
cient Frank Monarchy. — Grackial Estabhshment 
of Feudal Tenures.— Principles of a Feudal Re- 
lation. — Ceremonies of Homage and Investiture. 
— Military Service. — Feudal Incidents of Relief, 
Aid, Wardship, &c. — Different Species of Fiefs. 
— Feudal Law-books. 

Germany, in the age of Tacitus, was di- 
vided among a number of independent 
tribes, differing greatly in population and 
importance. Their country, overspread 
with forests and morasses, afforded little 
Political state arable land, and the cultivation 
of ancient of that little was inconstant. 
Germany. Their Occupations were prin- 
cipally the chase and pasturage ; without 
cities, or even any contiguous dwellings. 
They had kings, elected out of particu- 
lar families ; and other chiefs, both for 
war and administration of justice, whom 
merit alone recommended to the public 
choice. But the power of each was 
greatly limited; and the decision of all 

XI. In my references to this history, which for 
common facts I have not thought it necessary to 
make, I have merely named the author of the par- 
ticular volume which I quote. This has made the 
above explanation convenient, as the reader might 
imagine that I referred to three distinct w^orks. 
Of these three historians. Gamier, the last, is the 
most judicious, and, I believe, the most accurate. 
His proli.Kity, though a material defect, and one 
which has occasioned the work itself to become an 
immeasurable undertaking, which could never be 
completed on the same scale, is chiefly occasioned 
by too great a regard to details, and is more tolera- 
ble than a similar fault in Villaret, proceeding from 
a love of idle declamation and sentiment. ViUaret, 
however, is not without merits. He embraces, 
perhaps, more fully than his predecessor Velly, 
those collateral branches of history which an en- 
lightened reader requires almost in preference to 
civil transactions, the laws, manners, literature, 
and, in general, the whole domestic records of a na- 
tion. These subjects are not always well treated ; 
but the book itself, to which there is a remarkably 
full index, forms upon the whole a great repository 
of useful knowledge. Villaret had the advantage 
of official access to the French archives, by which 
he has no doubt enriched his history ; but his ref- 
erences are indistinct, and his composition breathes 
an air of rapidity and want of exactness. Velly's 
characteristics are not very dissimilar. The style 
of both is exceedingly bad, as has been severely 
noticed, along with their other defects, by Gaillard, 
in Observations sur I'Histoire de Velly, Villaret, et 
Gamier.— (4 vols. 12mo., Paris, 180G. ) 



leading questions, though subject to the 
previous deliberation of the chieftains, 
sprung from the free voice of a popular 
assembly.* The principal men, however, 
of a German tribe fully partook of that 
estimation which is always the reward 
of valour, and commonly of birth. They 
were surrounded by a cluster of youths, 
the most gallant and ambitious of the na- 
tion, their pride at home, their protection 
in the field ; whose ambition was flat- 
tered, or gratitude conciliated, by such 
presents as a leader of barbarians could 
confer. These were the institutions of 
the people who overthrew the empire of 
Rome, congenial to the spirit of infant 
societies, and such as travellers have 
found among nations in the same stage 
of manners throughout the world. And, 
although in the lapse of four centuries 
between the ages of Tacitus and Clovis, 
some change may have been wrought by 
long intercourse with the Romans, yet 
the foundations of their political system 
were unshaken. 

When these tribes from Germany and 
the neighbouring countries poured down 
upon the empire, and began to pg^iitjon of 
form permanent settlements, lands in con- 
they made a partition of the queredprov- 
lands in the conquered prov- ""^*®' 
inces between themselves and the origi- 
nal possessors. The Burgundians and 
Visigoths took two thirds of their re- 
spective conquests, leaving the remain- 
der to the Roman proprietor. Each Bur- 
gundian was quartered, under the gentle 
name of guest, upon one of the former 
tenants, whose reluctant hospitality con- 
fined him to the smaller portion of his 
estate. t The Vandals in Africa, a more 
furious race of plunderers, seized all the 
best lands. J The Lombards of Italy took a 
third part of the produce. We cannot dis- 
cover any mention of a similar arrange- 
ment in the laws or history of the Franks. 

* De minoribus rebus principes consultant, de 
majonbus omnes; ita tamen, ut ea quoque, quo- 
rum penes plebem arbitriuin est, apud principes 
periractentur. — Tac. de Mor. Germ.,c. xi. Acida- 
iius and Grotius contend for prcBtracfentur ; which 
would be neater, but the same sense appears to be 
conveyed by the common reading. 

t Leg. Burgund., c. 54, 55. 

i Procopius De Bello Vandal, 1. i., c. 5. 



Pakt I.] 



FEUDAL SYSTEM. 



66 



It is, however, clear that they occupied, 
by public allotment or individual pillage, 
a great portion of the lands of France. 

The estates possessed by the Franks, as 
Allodial and their property, were termed al- 
Saiique lands, lodial ; a word which is some- 
times restricted to such as had descended 
by inheritance.* These were subject to 
no burden except that of public defence. 
They passed to all the children equally, 
or, in their failure, to the nearest kin- 
dred.f But of these allodial possessions, 
there was a particular species, denomi- 
nated Salique, from which females were 
expressly excluded. What these lands 
were, and what was the cause of the ex- 
clusion, has been much disputed. No 
solution seems more probable, than that 
the ancient lawgivers of the Salian 
Franksf prohibited females from inherit- 
ing the lands assigned to the nation upon 
its conquest of Gaul, both in compliance 
with their ancient usages, and in order 
to secure the military service of every 
proprietor. But lands subsequently ac- 
quired, by purchase or other means, 
though equally bound to the public de- 
fence, were relieved from the severity 
of this rule, and presumed not to belong 
to the class of Salique.^ Hence, in the 
Ripuary law, the code of a tribe of 
Franks settled upon the banks of the 
Rhine, and differing rather in words than 
in substance from the Salique-law, which 

* Allodial lands are commonly opposed to bene- 
ficiary or feudal ; the former being strictly pro- 
prietary, while the latter depended upon a superi- 
or. In this sense the word is of continual recur- 
rence in ancient histories, laws, and instruments. 
It sometimes, however, bears the sense of inherit- 
ance ; and this seems to be its meaning in the 
famous G2d chapter of the Salique-law: de Alodis. 
Alodium interdum opponitur comparato, says Du 
Cange, in formulis veteribus. Hence, in the char- 
ters of the eleventh century, hereditary fiefs are 
frequently termed alodia. — Recueil des Historiens 
de France, t. xi., preface. Vaissette, Hist, de 
Languedoc, t. ii., p. 109. 

t Leg. Salicas, c. 62. 

t Tlie Saliquc-laws appear to have been framed 
by a Christian prince, and after the conquest of 
Gaul. They are therefore not older than Clovis. 
Nor can they be much later, smce they were altered 
by one of his sons. 

(f By the German customs, women, though 
treated with much respect and delicacy, were not 
endowed at their marriage. Dotem non uxor ma- 
rito, sed maritusuxori confert. — Tacitus, c. 18. A 
similar principle might debar them of inheritance 
in fixed possessions. Certain it is, that the exclu- 
sion of females was not unfrequent among the 
Teutonic nations. We find it in the laws of the 
Thuringians and of the Saxons ; both ancient 
codes, though not free from interpolation. — Leib- 
nitz, Scriptores Kerum Crunswicensium, t. i., pp. 
81 and 83. But this usage was repugnant to the 
principles of Roman law, which the Franks found 
prevailing in their new country, and to the natural 
feeUng which leads a man to prefer his own de- 
E 



it serves to illustrate, it is said, that a 
woman cannot inherit her grandfather's 
estate (haereditas aviatica), distinguish- 
ing such family property from what the 
father might have acquired.* And Mar- 
culfus uses expressions to the same ef- 
fect. There existed, however, a right 
of setting aside the law, and admitting 
females to succession by testament. It 
is rather probable, from some passages 
in the Burgundian code, that even the 
lands of partition (sortes Burgundionum) 
were not restricted to male heirs. f And 
the Visigoths admitted women on equal 
terms to the whole inheritance. 

A controversy has been maintained in 
France, as to the condition of the Ron,,„ 
Romans, or, rather, the provincial natives of 
inhabitants of Gaul, after the in- ^^"'• 
vasion of Clovis. But neither those who 
have considered the Franks as barbarian 
conquerors, enslaving the former pos- 
sessors, nor the Abbe du Bos, in whose) 
theory they appear as allies and friend- 
ly inmates, are warranted by historical 
facts. On the one hand, we find the Ro- 
mans not only possessed of property, 
and governed by their own laws, but ad- 
mitted to the royal favour, and the high- 
est offices ;| while the bishops and cler- 
gy, who were generally of that nation,^ 



scendants to collateral heirs. One of the prece- 
dents in Marculfus (1. ii., form 12) calls the exclu- 
sion of females diuturna et impia consuetudo. In 
another, a father addresses his daughter : Omnibus 
nonhabelur incognitum, quod, sicut lex Salica coii- 
tinet, de rebus nieis, quod mihi ex alode parentum 
meorum obvenit, apud germanos tuos filios meos 
minime inhaereditate succedere poteras. — Formulae 
Marculfo adjectae, 49. These precedents are sup- 
posed to have been compiled about the latter end 
of the seventh century. 

* C. 56. 

t I had in former editions asserted the cofitrary 
of this, on the authority of Leg. Burgund., c. 78, 
which seemed to limit the succession of estates, 
called sortes, to male heirs. But the expressions 
are too obscure to warrant this inference ; and M. 
Guizot (Essais Sur I'Hist. de France, vol. i., p. 
95) refers to the 14th chapter of the same code 
for the opposite proposition. But this, too, is not 
absolutely clear, as a general rule. 

t Daniel conjectures that Clotaire I. was the 
first who admitted Romans into the army, which 
had previously been composed of Franks. From 
this time we find many in high military command. 
— (Hist, de la Milice Fran(;oise, t. i., p. 11.) It 
seems by a passage in Gregory of Tours, by Du 
Bos (t. iii., p. 547), that some Romans affected the 
barbarian character by letting their hair grow. If 
this were generally permitted, it would be a strong- 
er evidence of approximation between the two 
races than any that Du Bos has adduced. Mon- 
tesquieu certainly takes it for granted that a Ro- 
man might change his law, and. thus become to all 
material intents a Frank. — (Esprit des Loix, 1. 
xxviii., c. 4.) But the passage on which he relies 
is read differently in the manuscripts. 

^ Some bishops, if we may judge from their bar- 
barous names, and other circumstances, were not 



66 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



grew up continually in popular estima- 
tion, in riches, and in temporal sway. 
Yet it is undeniable that a marked line 
v/as drawn at the outset between the 
conquerors and the conquered. Though 
one class of Romans retained estates of 
their own, yet there was another, called 
tributary, who seem to have cultivated 
those of the Franks, and were scarcely 
raised above the condition of predial ser- 
vitude. But no distinction can be more 
unequivocal than that which was estab- 
lished between the two nations in the 
weregild, or composition for homicide. 
Capital punishment for murder was con- 
trary to the spirit of the Franks, who, 
like most barbarous nations, would have 
thought the loss of one citizen ill repair- 
ed by that of another. The weregild 
was paid to the relations of the slain, ac- 
cording to a legal rate. This was fixed by 
the Salique-law at six hundred solidi for 
an Antrustion of the king ; at three hun- 
dred for a Roman conviva regis (meaning 
a man of sufficient rank to be admitted 
to the royal table) ; at two hundred for a 
common Frank; at one hundred for a 
Roman possessor of lands ; and at forty- 
five for a tributary, or cultivator of anoth- 
er's property. In Burgundy, where re- 
ligion and length of settlement had intro- 
duced different ideas, murder was pun- 
ished with death. But other personal 
injuries were compensated, as among the 
Franks, by a fine, graduated according to 
the rank and nation of the aggrieved 
party.* 

The barbarous conquerors of Gaul and 
Distinc- Italy were guided by notions 
tionofiaws. very different from those of 
Rome, who had imposed her own laws 
upon all the subjects of her empire. Ad- 
hering in general to their ancient cus- 
toms without desire of improvement, 
they left the former habitations in unmo- 
lested enjoyment of their civil institu- 
tions. The Frank was judged by the Sa- 



Eomans. See, for instance, Gregory of Tours, 1. 
vi., c. 9. But no distinction was made among 
them on this account. The composition for the 
murder of a bishop was nine hundred soUdi ; for 
that of a priest, six hundred of the same coin. — 
Leges SalicEe, c. 58. 

* Leges Salicffi, c. 43. Leges Burgundionum, 
tit. 2. Murder and robbery were made capital by 
Childebert, king of Paris ; but Francus was to be 
sent for trial in the royal court, debilior persona in 
loco pendatur. — Baluz., t. i., p. 17. I am inclined 
to think that the word Francus does not absolutely 
refer to the nation of the party ; but rather to his 
rank, as opposed to debilior persona; and, conse- 
quently, that it had already acquired the sense of 
freeman, or frcehorn (ingenuus), which is perhaps 
Its strict meaning. Du Cange, voc. Francus, 
quotes the passage in this sense. 



lique or the Ripuary code ; the Gaul follow- 
ed that of Theodosius.* This grand dis- 
tinction of Roman and barbarian, accord- 
ing to the law which each followed, was 
common to the Frank, Burgundian, and 
Lombard kingdoms. But the Ostrogoths, 
whose settlement in the empire and ad- 
vance in civility of manners were earher, 
inclined to desert their old usages, and 
adopt the Roman jurisprudence.! The 
laws of the Visigoths too were compiled 
by bishops upon a Roman foundation, 
and designed as a uniform code, by which 
both nations should be governed. J The 
name of Gaul or Roman was not entirely 
lost in that of Frenchman, nor had the 
separation of their laws ceased, even in 
the provinces north of the Loire, till after 
the time of Charlemagne.^ Ultimately, 
however, the feudal customs of succes- 
sion, which depended upon principles 
quite remote from those of the civil law, 
and the rights of territorial justice which 
the barons came to possess, contributed 
to extirpate the Roman jurisprudence in 
that part of France. But in the south, 
from whatever cause, it survived the 
revolutions of the middle ages ; and thus 
arose a leading division of that kingdom 
into pays coutumiers and pays du droit 
ecrit; the former regulated by a vast va- 
riety of ancient usages, the latter by the 
civil law. II 



* Inter Romanos negotia causarum Romanis le- 
gibus praecipimus terminari. — Edict. Clotair. I., 
circ. 560. Baluz. CapituL, t. i., p. 7. 

t Giannone, 1. iii., c. 2. 

t Hist, de Languedoc, t. i., p. 242. Heineccius, 
Hisl. Juris German., c. i , s. 15. 

^ Soger, in his hfe of Louis VI., uses the ex- 
pression lex Salica (Recueil des Historiens, t. xii., 
p. 24) ; and I have some recollection of having met 
with the like words in other writings of as modem 
a date. But I am not convinced that the original 
Sahque code was meant by this phrase, which may 
have been applied to the local feudal customs. 
The capitularies of Charlemagne are frequently 
termed lex Salica. Many of these are copied from 
the Theodosian code. 

II This division is very ancient, jjeing found in 
the edict of Pistes, under Charles the Bald, in 
864 ; where we read, in illis regionibus, quse legem 
Romanam sequuntur.— (Recueil des Historiens, t. 
vii., p. 664.) Montesquieu thinks that the Roman 
law tell into disuse in the north of France on ac- 
count of the superior advantages, particularly in 
point of composition for offences, annexed to the 
Salique-law ; while that of the Visigoths being more 
equal, the Romans under their government had 
no inducement to qait their own code.— ( Esprit des 
Loix, 1. xxviii., c. 4.) But it does not appear that 
the Visigoths had any peculiar code of laws till 
after their expulsion from the kingdom of Tou- 
louse. They then retained only a small strip of 
territory in France, about Narbonne and Montpe- 
ker. 

However, the distinction of men according to 
their laws was preserved for many centuries, both 
in France and Italy. A judicial proceeding of the 



Part I.] 



FEUDAL SYSTEM. 



67 



The kingdom of Clovis was divided 
into a number of districts, each under the 
government of a count, a name familiar 
to Roman subjects, by which they ren- 
dered the graf of the Germans. The 
Provincial authority of this oificer extend- 
fflhe"'"*"" ^^ '^^^'^ ^^^ ^^^ inhabitants, as 
French well Franks as natives. It was 
Empire. ^js duty to administer justice, 
to preserve tranquillity, to collect the 
royal revenues, and to lead, when requi- 
red, the free proprietors into the field.* 
The title of a duke implied a higher dig- 
nity, and commonly gave authority over 
several counties. f These offices were 

year 918, published by the historians of Languedoc 
(t. ii., Appendix, p. 56), proves that the Koman, 
Gothic, and Salique codes were then kept perfectly 
separate, and that tliere were distinct judges for 
the three nations. The Gothic law is referred to 
as an existing authority in a charter of 1070. — 
Idem, t. iii., p. 274. De Marca, Marca Hispanica, p. 
1159. Every man, both in France (Hist, de Lan- 
guedoc, t. ii.. Appendix, p. 69) and in Italy, seems 
to have had the right of choosing by what law he 
would be governed. Volumus, says Lothaire I. in 
324, ut cunctus populus Komanus interrogetur, 
quali lege vult vivere, ut tali, quali professi fuerint 
vivere velle, vivant. Quod si offensionem contra 
?andem legem fecerint, eidem legi quum profiten- 
Ur, subjacebunt. Women upon marriage usually 
changed their law, and adopted that of their hus- 
L)and, returning to their own in widowhood ; but 
o this there are exceptions. Charters are found, 
as late as the twelfth century, with the expression, 
qui professus sum lege Longobardica [aut] lege 
Salica [aut] lege Alemannorum vivere. But soon 
afterward the distinctions were entirely lost, partly 
through the prevalence of the Roman law, and 
partly through the multitude of local statutes in 
he Italian cities. — Muratori, Antiquitates Italiaj, 
Dissertat. 22. Du Cange, v. Lex. Heinecciu.s, 
Historia Juris Germanici, c. ii., s. 51. 

* Marculti Formulae, 1. i., 33. 

t Houard, the learned translator of Littleton 
(Anciens Loix des Francois, t. i., p. 6j, supposes 
^hese titles to have been applied indiltereiitly. But 
he contrary is easily proved, and especially by a 
ane of Fortunatus, quoted by Du Cange and others : 

" Qui modo dat Comitis, dei tibi jura Ducis." 
The cause of M. Houard's error may perhaps be 
worth noticing. In the above cited form of Mar- 
culfus, a precedent (in law language) is given for 
he appointment of a Juke, count, or patrician. 
The material part being the same, it was only ne- 
cessary ioiiU up the blanks, as we should call it, by 
.inserting the proper designation of office. It is ex- 
pressed therefore, actionem comilatus, ducatiis, aut 
patriciatus in pago illo, quam antecessor tuus ille usque 
nunc visus est egisse, tibi agendum regendumque 
commisimus. Montesquieu has fallen into a sim- 
ilar mistake (1 xxx., c. 16), forgetting for a mo- 
ment, like Houard, that these instruments in Mar- 
culfus were not records of real transactions, but 
general forms for future occasion. 

The office of patrician is rather more obscure. 
It seems to have nearly corresponded with what 
was afterward called mayor of the palace, and to 
have implied the command of all the royal forces. 
Such at least were Celsus, and his successor Mum- 
molus, under Gontran. This is probable too from 
analogy. The patrician was the highest officer in 
E3 



originally conferred during pleasure ; but 
the claim of a son to succeed his father 
would often be found too plausible or too 
formidable to be rejected, and it is highly 
probable that, even under the Merovin- 
gian kings, these provincial governors 
had laid the foundations of that independ- 
ence which was destined to change the 
countenance of Europe.* The Lombard 
dukes, those especially of Spoleto and 
Benevento, acquired very early an hered- 
itary right of governing their provinces, 
and that kingdom became a sort of fed- 
eral aristocracy.f 

The throne of France was always fil- 
led by the royal house of Meroveus. 
However complete we may ima- g^^^gggj^ 
gine the elective rights of the to the 
Franks, it is clear that a funda- French mo 
mental law restrained them to "*'"'^''y- 
this family. Such indeed had been the 
monarchy of their ancestors the Ger- 
mans ; such long continued to be those 
of Spain, of England, and perhaps of all 
European nations. The reigning family 
was immutable ; but at every vacancy 
the heir awaited the confirmation of a 
popular election, whether that were a 
substantial privilege, or a mere ceremo- 
ny. 'Exceptions, however, to the lineal 
succession, are rare in the history of any 
country, unless where an infant heir was 
thought unfit to rule a nation of freemen. 
But in fact it is vain to expect a system 



the Koman empire, from the time of Constantine, 
and we know how much the Franks themselves, 
and still more their Gaulish subjects, Eifiected to 
imitate the style of the imperial court. 

* That the offices of count and duke were origi- 
nally but temporary, may be inferred from several 
passages in Gregory of Tours ; as 1. v., c. 37 ; 1. viii., 
c. 18. But it seems by the laws of tJ|e Alemanni, 
c. 35, that the hereditary succession aRh^ir dukes 
was tolerably established at the beginning of the 
seventh century, when their code was promulgated. 
The Bavarians chose their own dukes out of one 
family, as is declared in their laws ; tit. ii., c. 1 and 
c. 20. — (Lindebrog, Codex Legum antiquarum.) 
This the Emperor Henry II. confirms in Ditmar; 
Nonne scitis (he says), Bajuarios ab initio ducem 
eligendi liberam habere potestatem ? — (Schmidt, 
Hist, des AUemands, t. ii., p. 404.) Indeed, the 
consent of these German provincial nations, if I 
may use the expression, seems to have been always 
required, as in an independent monarchy. Ditinar, 
a chronicler of the tenth century, says, that Eckard 
was made Dukeof Thuringia totius populi consen- 
su.— Pfeffel, Abrege Chronologique, t. i.. p. 184. 
With respect to France properly so called, or the 
kingdoms of Neustria and Burgundy, it may be 
less easy to prove the existence of hereditary offices 
under the Merovingians. But the feebleness of 
their government makes it probable that so natural 
a symptom of disorganization had not failed to en 
sue. The Helvetian counts appear to have been 
nearly independent, as early as this period. — (Plan 
ta's Hist, of the Helvetic Confederacy, chap, i.) 

t Giannone, 1. iv. 



68 



EUROPE DURING THE MIDDLE AGES. 



Chap. II. 



of constitutional laws rigidly observed 
in ages of anarchy and ignorance. Those 
antiquaries who have maintained the 
most opposite theories upon such points 
are seldom in want of particular instan- 
ces to support their respective conclu- 
sions.* 

Clovis was a leader of barbarians, who 
Limited au- respected his valour, and the 
thority of rank which they had given him, 
ciovis. ^^^ were incapable of servile 
feelings, and jealous of their common as 
well as individual rights. In order to 
appreciate the power which he possessed, 
we have only to look at the well-known 
Vase of Story of the vase of Soissons. 
Soissons. When the plunder taken in Clo- 
vis's invasion of Gaul was set out in this 
place for distribution, he begged for him- 
self a precious vessel, belonging to the 
church of Rheims. The army having 
expressed their willingness to consent, 
" You shall have nothing here," exclaim- 
ed a soldier, striking it with his battle- 
axe, "but what falls to your share by 
lot." Clovis took the vessel, without 
marking any resentment; but found an 
opportunity, next year, of revenging him- 
self by the death of the soldier. It is im- 
possible to resist the inference which is 
supplied by this story. The wljule be- 
haviour of Clovis is that of a barbarian 
chief, not darmg to withdraw any thing 
from the rapacity, or to chastise the 
rudeness, of his followers. 

But if such was the liberty of We 
Power of Franks when they first became 
the kings conquerors of Gaul, we have 
increases, g^^^j reason to believe that they 
did not long preserve it. A people not 
very numerous spread over the spacious 
provincesAf Gaul, wherever lands were 
assigned to, or seized by them.f It be- 
came a burden to attend those general 
assemblies of the nation, which were an- 
nually convened in the month of March, 
to deliberate upon public business, as 

* Hottoman (Franco-Gallia, c. vi.) and Boulain- 
villiers (Etat de la France) seem to consider the 
crown as absolutely elective. The Abbe Vertot 
(Memoires de I'Acad. des Inscriptions, t. iv.) main- 
tains a limited right of election within the reigning 
family. M. de Foncemagne (t. vi. and t. viii. of 
the same collection) asserts a strict hereditary de- 
scent. Neither perhaps sufTicieiitly distinguishes 
acts of violence from those of right, nor observes 
the changes in the French constitution between 
Clovis and Childeric III. 

t Du Bos, Hist. Critique, t. ii., p. 301, maintains 
that Clovis had not more than 3000 or 4000 Franks 
in his army, for which he produces some, though 
not very ancient, authorities. The smallness of 
the number of SaUans may account for our finding 
no mention of the partitions made in their favour. 
See, however, Du Bos, t. iii., p. 406. 



well as to exhibit a muster of military 
strength. After some time, it appears 
that these meetings drew together only 
the bishops, and those invested with civil 
offices.* The ancient inhabitants of 
Gaul, having little notion of political lib- 
erty, were unlikely to resist the most ty- 
rannical conduct. Many of them became 
officers of state and advisers of the sov- 
ereign, whose ingenuity might teach 
maxims of despotism unknown in the 
forests of Germany. We shall scarcely 
wrong the bishops by suspecting them of 
more pliable courtliness than was natural 
to the long-haired warriors of Clovis. f 
Yet it is probable that some of the 
Franks were themselves instrumental in 
this change of their government. The 
court of the Merovingian kings was 
crowded with followers, who have been 
plausibly derived from those of the 
German chiefs described by Tacitus; 
men, forming a distinct and elevated 
class in the state, and known by the ti- 
tles of Fideles, Leudes, and Antrustiones. 
They took an oath of fidelity to tlie king 
upon their admission into that rank, and 
were commonly remunerated with gifts 
of land. Under difterent appellations we 
find, as some antiquaries think, this class 
of courtiers in the early records of Lom- 
bardy and England. The general name 
of vassals (from Gwas, a Celtic word for 
a servant) is applied to them in every 
country. J By the assistance of these 
faithful supporters, it has been thought 
that the regal authority of Clovis's suc- 
cessors was ensured.^ However this 



* Dm Bos, t. iii., p. 327. Mably, Observ. sur 
I'Hist^oire de France, 1. i., c. 3. 

t Gregory of Tours, throughout his history, 
talks of the royal power in the tone of Louis XI V.'s 
court. If we viere obliged to believe all we read, 
even the vase ol Sois.sons would bear witness to 
the obedience of the Franks. 

t The Gasindi of ItUy, and the Anglo-Saxon royal 
Thane, appear to correspond, more or less, to the 
Antrustions of France. The word Thane, howev- 
er, was used in a very er tensive sense, and com- 
prehended all free proprietors of land. That of 
Lnides seems to imply only subjection, and is fre- 
quently applied to the whole body of a nation, as 
well as, in a stricter sense, to the king's personal 
vassals. This name they did not acquire original- 
ly by possessing benefices, but rather, by being 
vassals or servants, became the object of benefi- 
ciary donations. In one of Marculfus's precedents, 

I. i., f. 18, we have the form by which an Antrus- 
tion was created. See Du Cange, under these sev- 
eral words, and Muratori's thirteenth dissertation 
on Italian antiquities. The Gardmgi, sometimes 
mentioned in the laws of the Visigoths, do not ap- 
pear to be of the same description. 

^ Boantus * * * » vallatus in domo sua, ab ho- 
minibus regis interfectus est.— Greg. Tur., 1. viii., c. 

II. A few spirited retainers were suflicient to ex^ 
ecute the mandates of arbitrary power among a 
barbarous, disunited people. 



Part I.] 



FEUDAL SYSTEM. 



69 



may be, the annals of his more immedi- 
ate descendants exhibit a course of op- 
pression, not merely displayed, as will 
often happen among uncivilized people, 
though free, in acts of private injustice, 
but in such general tyranny as is incom- 
patible with the existence of any real 
checks upon the sovereign.* 

But before the middle of the seventh 
century, the kings of this line had fallen 
into that contemptible state which has 
Degeneracy been described in the last chap- 
of the royal ter. The mayors of the palace, 
Maj'ors of who, from mere officers of the 
the palace, court, had now become masters 
of the kingdom, were elected by the 
Franks, not indeed the whole body of 
that nation, but the provincial governors, 
and considerable proprietors of land.f 
Some inequality there probably existed 
from the beginning in the partition of 
estates, and this had been greatly in- 
creased by the common changes of prop- 
erty, by the rapine of those savage times, 

* The proofs of this may be found in almost 
every page of Gregory : among other places, see 1. 
iv., c. 1 ; I. vi., c. 29 ; 1. ix., c. 30. In all edicts pro- 
ceedmg from the first kings, they are careful to ex- 
press the consent of their subjects. Clovis's lan- 
guage runs — Populus noster petit. His son Chil- 
debert expresses himself: una cum nostris optima- 
tibus pertractavimus — convenit una cum leudis 
nostris. But in the famous treaty of Andeley, A. 
D. 587, no national assent seems to have been ask- 
ed or given to its provisions, which were very im- 
portant. And an edict of one of the Clotaires (it is 
uncertain whether the first or second of that name, 
though Montesquieu has given good reasons for 
the latter) assumes a more magisterial tone, with- 
out any mention of the Leudes. 

t The revolution which ruined Brunehaut was 
brought about by the defection of her chief nobles, 
especially Warnachar, mayor of Austrasia. Upon 
Clotaire II. 's victory over her, he was compelled to 
reward these adherents at the expense of the mon- 
archy. Warnachar was made mayor of Burgundy, 
with an oath from the king never to dispossess him. 
— (Fredegarius, c. 42.) In 626, the nobility of Bur- 
gundy declined to elect a mayor, which seems to 
have been considered as their right. From this 
time nothing was done without the consent of the 
aristocracy. Unless we ascribe all to the different 
■ways of thinking in Gregory and Fredegarius, the 
one a Roman bishop, the other a Frank or Bur- 
gundian, the government was altogether changed. 

It might even be surmised, that the crown was 
considered as more elective than befora The au- 
thor of Gesta Regum Francorum, an old chronicler 
who lived in those times, changes his form of ex- 
pressing a king's accession from that of Clotaire 
II. Of the earlier kings he says only, regnuin 
recepit. But of Clotaire, Franci quoque prsdic- 
tum Clotainum regem parvulum supra se in reg- 
num statuerunt. Again, of the accession of Dago- 
bert I. : Austrasii Franci superiores congregati in 
unum, Dagobertum supra se in regnum statuunt. 
In another place, Decedente praelato rege Clodo- 
veo, Franci Clotairmm seniorem puerum extribus 
sibi regem statuerunt. Several other instances 
might be quoted 



and by royal munificence. Thus arose 
that landed aristocracy, which became 
the most striking feature in the political 
system of Europe during many centuries, 
and is in fact its great distinction, both 
from the despotism of Asia, and the 
equality of republican governments. 

There has been some dispute about 
the origin of nobility in France, 
which might perhaps be settled, '^"^• 
or at least better understood, by fixing 
our conception of the term. In our mod- 
ern acceptation, it is usually taken to im- 
ply certain distinctive privileges in the 
political order, inherent in the blood of 
the possessor, and consequently not 
transferable like those which property 
confers. Limited to this sense, nobility, 
I conceive, was unknu! n to the con- 
querors of Gaul till long after the down- 
fall of the Roman empire. They felt, no 
doubt, the common prejudice of mankind 
in favour of those whose ancestry is con- 
spicuous, when compared with persons 
of obscure birth. This is the primary 
meaning of nobility, and perfectly distin- 
guishable from the possession of exclu- 
sive civil rights. Those who are ac- 
quainted with the constitution of the 
Roman republic, will recollect an in- 
stance of the difference between these 
two species of hereditary distinction, in 
the patricii and the nobiles. Though I do 
not think that the tribes of German ori* 
gin paid so much regard to genealogy as 
some Scandinavian and Celtic nations 
(else the beginnings of the greatest 
houses would not have been so envelop- 
ed in doubt as we find them), there are 
abundant traces of the respect in which 
families of known antiquity were held 
among them.* 

But the essential distinction of ranks in 
France, perhaps also in Spain and Lom- 
bardy, was founded upon the possession 
of land, or upon civil employment. The 
aristocracy of wealth preceded that of 

* The antiquity of French nobility is maintained 
temperately by Schmidt, Hist, des Allemands, t. i., 
p. 361, and with acrimony by Montesquieu, Esprit 
des Loix, 1. xxx., c. 25. Neither of them proves 
any more than I have admitted. The expre.ssion 
of Ludovicus Pius to his freedman. Rex fecit te 
liberum, non nobilem : quod impossibiie est post 
libertatem, is very intelligible, without imagining a 
privileged class. Of the practical regard paid to 
tirth, indeed, there are many proofs. It seems to 
have been a recommendation in the choice of 
bishops. — (Marculrt Formula, 1. i., c. 4, cum notis 
Bignomi, in Baluzii Capitularibus.) It was proba- 
bly much considered in conferring dignities. Fre 
degarius says of Protadius, mayor of the palace to 
Brunehaut, Quoscunque genere nobiles reperiebat, 
totos humiliare conabatur, ut nuUus reperiretur, qui 
gradum, quern arripuerat, potuisset assumere. 



70 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



birth, which indeed is still chiefly depend- 
ant upon the other for its importance. A 
Frank of large estate was styled a noble ; 
if he wasted or was despoiled of his 
wealth, his descendants fell into the 
mass of the people, and the new pos- 
sessor became noble in his stead. In 
these early ages, property did not very 
frequently change hands, and desert the 
famihes who had long possessed it. 
They were noble iby descent, therefore, 
because they were rich by the same 
means. Wealth gave them power, and 
power gave them pre-eminence. But no 
distinction was made by the Salique or 
Lombard codes in the composition for 
homicide, the great test of political sta- 
tion, except in favour of the king's vas- 
sals. It seems, however, by some of the 
barbaric codes, those namely of the Bur- 
gundians, Visigoths, Saxons, and the Eng- 
lish colony of the latter nation,* that the 
free men were ranged by them into two 
or three classes, and a difference made 
in the price at which their lives were 
valued : so that there certainly existed 
the elements of aristocratic privileges, if 
we cannot in strictness admit their com- 
pletion at so early a period. The Antrus- 
tions of the kings of the Franks were also 
noble, and a composition was paid for their 
murder treble of that for an ordinary citi- 
zen : but this was a personal, not an 
hereditary distinction. A link was want- 
ing to connect their eminent privileges 
with their posterity ; and this link was to 
be supphed by hereditary benefices. 

Besides the lands distributed among 
Fiscal the nation, others were reserved to 
lands, the crown, partly for the support of 
its dignity, and partly for the exercise of 
its munificence. These were called fis- 
cal lands ; they were dispersed over dif- 
ferent parts of the kingdom, and formed 
the most regular source of revenue. f 
But the greater portion of them were 
granted out to favoured subjects, under 
the name of benefices, the nature of 
which is one of the most important 
points in the policy of these ages. 



* Leg. Burgund., tit. 26. Leg. Visigoth., 1. ii., 
t. 2, c. 4 (in Lindebrog). Du Cange, voc. Adalingus, 
Nobilis. Wilkins, Leg. Ang. Sax., passim. I think 
it cannot be denied that nobility, founded either 
upon birth or property, and distinguished from mere 
personal freedom, entered into the Anglo-Saxon 
system. Thus the eorl and ceorl are opposed to 
each other, like the noble and roturier in France. 

•j- The demesne lands of the crown are contmu- 
ally mentioned in the early writers ; the kings, in 
journeying to diiferent parts of their dominions, 
took up their abode in them. Charlemagne is very 
full in his directions as to their management. — Ca- 
pitularia, A, D. 797, et alibi. 



Benefices were, it is probable, 
most frequently bestowed upon 
the professed courtiers, the Antrustiones 
or Lendes, and upon the provincial gov- 
ernors. It by no means appears that 
any conditions of military service were 
expressly annexed to these grants : but 
it may justly be presumed that such fa- 
vours were not conferred without an ex- 
pectation of some return ; and we read, 
boln in law and history, that beneficiary 
tenants were more closely connected 
with the crown than mere allodial pro- 
prietors. Whoever possessed a benefice 
was bound to serve his sovereign in the 
field. But of allodial proprietors only the 
owner of three mansi was called upon 
for personal service. Where there were 
three possessors of single mansi, one 
went to the army, and the others con- 
tributed to his equipment.* Such at least 
were the regulations of Charlemagne, 
whom I cannot believe, with Mably, to 
have relaxed the obhgations of military 
attendance. After the peace of Coblentz, 
in 860, Charles the Bald restored all allo- 
dial property belonging to his subjects 
who had taken part against him, but not 
his own beneficiary grants, which they 
were considered as having forfeited. 

Most of those who have wi-ilten upon 
the feudal system, lay it down that Tiieir 
benefices were originally precari- e.xtent. 
ous, and revoked at pleasure by the 
sovereign ; that they were afterward 
granted for life ; and, at a subsequent pe- 
riod, became hereditary. No satisfactory 
proof, however, appears to have been 
brought of the first stage in this prog- 
ress.! -A^t least, I am not convinced, 



* Capitul. Car. Mag., ann. 807 and 812. I can- 
not define the precise area of a mansus. It con- 
sisted, according to Du Cange, of twelve jugera; 
but what he meant by a juger I know not. The 
ancient Roman juger was about five eighths of an 
acre ; the Parisian arpent was a fourth more than 
one. This would make a difference as two to one. 

t The position which I have taken upon me to 
controvert, is laid down in almost every writer on 
the feudal system. Besides Sir James Craig, Spel- 
man, and other older authors, Houard, in his An- 
ciennes Loix des Francois, t. i., p. 5, and the edi- 
tors of the Benedictine Collection, t. xi., p. 163, 
take the same point for granted. Mably, Ob.serva- 
tions sur I'Histoire de France, 1. i., c. 3, calls it, 
une v6rit6 que M. de Montesquieu a tr^.-3 bien prou- 
vee. And Robertson affirms with unusual posi- 
tiveness, " These benefices were granted origi- 
nally only during pleasure. No circum.stance rela- 
ting to the customs of the middle ages is better as- 
certained than this : and innumerable proofs of it 
might be added to those produced in L'Ksprit des 
Loix, and by Du Cange."— Hist. Charles V., vol. i., 
not. 8. 

These testimonies, which Robertson has not 
chosen to bring forward, we cannot conjecture ; 
nor is it easy to comprehend by what felicity he 



Tart 1.] 



FEUDAL SYSTEM. 



71 



that beneficiary grants were ever consid- 
ered as resumable at pleasure, unless 
where some delinquency could be impu- 
ted to the vassal. It is possible, though 
I am not aware of any documents which 
prove it, that benefices may, in some in- 
stances, have been granted for a term of 
years, since even fiefs, in much later 
times, were occasionally of no greater 
extent. Their ordinary duration, how- 
ever, was at least the life of the posses- 
sor, after which they reverted to the 

has discovered, in tlie penury of historical records 
during the sixth and seventh centuries, innumera- 
ble proofs of a usage which, by the confession of 
all, dui not exist at any later period. But as the 
authorities quoted by Montesquieu have appeared 
conclusive both to Mably and Robertson, it may 
be proper to examine them separately. The fol- 
lowing is the passage in the L'Esprit des Loix on 
which they rely. 

On ne peut pas douter que d'abofd les fiefs ne 
fussent amovibles. On voit, dans Gre.Ofoire de 
Tours, que Ton ote a Sunegisile et a Galloman 
tout ce qu'ils tenoient du tisc, et qu'on ne leur 
laisse que ce qu'ils avoient en propriete. Gontran, 
^levant au trone son neveu Chddebert, eut une 
conference secrette avec lui, et lui indiqua ceux a 
qui il devoit donner des fiefs, et ceux a qui il devoit 
les oter. Dans une formule de Marculfe, le roi 
donne en lichange, non seulement des benefices 
que son fisc tenoit, mais encore ceux qu'un autre 
avoit tenus. La loi des Lombards oppose les ben- 
efices a la propriete. Leshistoriens, les formules, 
les codes des differens peupies barbares, tous les 
monumens qui nous restent, sont unanimes. En- 
fin, ceux qui ont ecrit le Livre des Fiefs, nous ap- 
prennent que d'abord les seigneurs purent les oter 
a leur volonte, qu'ensuite ils les assur^rent pour un 
an, et apres les donnferent pour toujours, l.xxx,, c.l6. 
The first of Montesquieu's authorities is from 
Gregory of Tours, I. ix., c. 38. Sunegisilus and 
Gallomagnus, two courtiers of Childebert, having 
been accused of a treasonable conspiracy, fled to 
sanctuary, and refused to stand their trial. Their 
beneficiary lands were upon this very justly taken 
away by a judicial sentence. What argument can 
be drawn from a case of forfeiture for treason or 
outlawry, that benefices were granted only during 
pleasure ? 2. Gontran is said by Gregory to have 
advised his nephew Childebert, quos honoraret 
munenbus, quos ab honore depelleret, 1. vii., 33. 
But honour is more commonly used in the earliest 
writers for an office of dignity than for a landed es- 
tate ; and even were the word to bear in this place 
the hitter meaning, we could not fairly depend on 
an authority, drawn from times of peculiar tyranny 
and civil convulsion. I am not contending that 
men were secure in their beneficiary, since they 
certainly were not so in their allodial estates : the 
sole question is as to the right they were supposed 
to possess in respect of them. 3. In the precedent 
of Marculfus, quoted by Montesquieu, the king is 
supposed to grant lands which some other person 
had lately held. But this is meant as a designation 
of the premises, and would be perfectly applicable, 
though the late possessor were dead. 4. It is cer- 
tainly true that the Lombard laws (that is, laws 
enacted by the successors of Charlemagne in Lom- 
bardy), and the general tenour of ancient records, 
with a few exceptions, oppose benefices to propri- 
ety : but it does not follow that the former were 
revocable at pleasure. This opposition of a'lodial 



fisc* Nor can I agree with those who 
deny the existence of hereditary benefi- 
ces under the first race of French kings. 
The codes of the Burgundians and of the 
Visigoths, which advert to them, are, by 
analogy, witnesses to the contrary.! The 
precedents given in the forms of Marcul- 
fus (about 660) for the grant of a bene- 
fice, contain very full terms, extending it 
to the heirs of the beneficiary.| And 
Mably has plausibly inferred the perpetu- 
ity of benefices, at least in some instan- 

to feudal estates subsists at present, though the ten- 
ure of the latter is any thing rather than precarious. 
5. As to the Libri Feudorum, which are a compila- 
tion by some Milanese lawyers in the twelfth cen- 
tury, they cannot be deemed of much authority for 
the earlier history of the feudal system in France. 
There is certainly reason to think, that even in the 
eleventh century, the tenure of fiefs in some parts 
of Lombardy was rather precarious ; but whether 
this were by any other law than that of the strong- 
er, it would be hard to determine. 

Du Cange, to whom Robertson also refers, gives 
this definition of a benefice ; prasdium fiscale, quod 
a rege vel principe, vel ab alio quolibet ad vitam 
viro nobili utendum conceditur. In a subsequent 
place, indeed, he says : nee tantum erant ad vi- 
tam, sed pro libitu auferebantur. For this he only 
cites a letter of the bishops to Louis the Debonair ; 
Ecclesiae nobis a Deo commissae non lalia sunt 
beneficia, et hujusmodi regis proprietas, ut pro lib- 
itu suo inconsulte illas possit dare, aut auferre. 
But how slight a foundation does this afford for 
the inference that lay benefices were actually lia- 
ble to be resumed at pleasure ! Suppose even this 
to be a necessary application i)i the argument of 
those bishops, is it certain that they stated the law 
of their country with accuracy ? Do we not find 
greater errors than this every day in men's speech 
and writings, relative to points with which they 
are not immediately concerned ? In fact, there is 
no manner of doubt that benefices were granted 
not only for life, but as inheritances, in the reign of 
Louis. In the next sentence Du Cange adds a 
qualification which puts an end to the controversy, 
so far as his authority is concerned ; Non temere 
tamen, nee sine legali judicio auferebantur. That 
those two sentences contradict each other is man- 
ifest ; the latter, in my opimon, is the more correct 
position. 

* The following passage from Gregory of Toura 
seems to prove, that although sons were occasion- 
ally permitted to succeed their fathers, an indul- 
gence which easily grew up into a right, the crown 
had, in his time, an unquestionable reversion after 
the death of its original beneficiary. Hoc tempore 
et Wandelinus, nutntor Childeberti regis, obiit ; 
sed in locum ejus nuUus est subrogatus, eo quod 
regina mater curam velit propriam habere de filio. 
QucBCunque de fisco meruit, fisci juribus sunt relata. 
Obiit his diebus Bodegesilus dux plenus dieruin ; 
sed nihil de facultate ejus filiis minutum est, 1. viii., 
c. 22. Gregory's work, however, does not go far 
ther than 595. 

t Leges Burgundionum, tit i. Leges Wisigoth., 
1. v., tit. 2. 

X Marculf, form. xii. and xiv.,1. i. This prece- 
dent was in use down to the eleventh century ; its 
expressions recur in almost every charter. The 
earliest instance I have seen of an actual grant to 
a private person, is of Charlemagne to one John, in 
71)5.— Baluzii Capitulana, t. li., p. 1400. 



72 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



ces, from the language of the treaty at 
Andely in 587, and of an edict of Clotaire 
II. some years hiter.* We can hardly 
doubt at least that children would put in 
a very strong claim to what their father 
had enjoyed ; and the weakness of the 
crown in the seventh century must have 
rendered it difficult to reclaim its property. 
A natural consequence of hereditary 
Sub-infeu- benefices was that those who 
dation. possessed them carved out por- 
tions to be held of themselves by a simi- 
lar tenure. Abundant proofs of this cus- 
tom, best known by the name of sub-in- 
feudation, occur even in the capitularies 
of Pepin and Charlemagne. At a later 
period it became universal ; and what 
had begun perhaps through ambition or 
pride, was at last dictated by necessity. 
In that dissolution of all law which en- 
sued after the death of Charlemagne, the 
powerful leaders, constantly engaged in 
domestic warfare, placed their chief de- 
pendance upon men whom they attached 
by gratitude, and bound by strong condi- 
tions. The oath of fidelity which they 
had taken, the homage which they had 
paid to the sovereign, they exacted from 
their own vassals. To render military 
service became the essential obligation 
which the tenant of a benefice under- 
took; and out of those ancient grants, 
now become for the most part hereditary, 
there grew up in the tentli century, both 
in name and reality, the system of feudal 
tenures. t 

* Quicquid antefati reges ecclesiis aut fidelibus 
suis contulerunt, aut adhuc conferre cum justitia 
Deo propitiante voluerint, stabiliter conservetur ; 
et quicquid unicuique fidelium in utriusque regno 
per legem et justitiam redhibetur, nullum ei prae- 
judicmm ponatur, sed liceat res debitas possidere 
atque recipere. Et si aliquid unicuique per inter- 
regna sine culpa sublatum est, audientia habita 
restauretur. Et de eo quod per munificentias prae- 
cedentium regum unusquisque usque ad transitum 
gloriosaB memoriae domini Chlothacharii regis pos- 
sedit, cum securilate possideat ; et quod exinde 
fidelibus personis ablatum est, de praesenti recipiat. 
Foedus Andeliacum, in Gregor. Turon., 1. ix., c. 20. 

Quaecunque ecclesis vel clericis vel quibuslibet 
personis a gloriosae memoriae prafatis pnncipibus 
munificentiae largitate coUatae siint, onini firmitate 
perdurent. — Edict. Chlotachar. I. vel potius II. in 
Recueil des Historiens, t. iv., p. 116. 

t Somner says, that he has not found the word 
feudum anterior to the year 1000 ; and Muratori, a 
still greater authority, doubts whether it was used 
so early. I have, however, observed the words 
feum and fevum, which are manifestly corruptions 
of feudnm, in several charters about 960. — Vais- 
sette. Hist, de Languedoc, t. ii., Appendix, p. 107, 
128, et alibi. Some of these fiefs appear not to 
have been hereditary. But, independently of pos- 
itive instances, can it be doubted that some word 
of barbarous original must have answered, in the 
vernacular languages, to the Latin beneficium ? See 
Du Cange v. Feadam. 



This revolution was accompanied by 
anotlier still more important, usurpation 
The provincial governors, the or provincial 
dukes and counts, to whom governors. 
we may add the marquises or mar- 
graves, intrusted with the custody of the 
frontiers, had taken the lead in all pub- 
he measures after the decline of the 
Merovingian kings. Charlemagne, duly 
jealous of their ascendency, checked it 
by suflfering the dutchies to expire with- 
out renewal, by granting very few coun- 
ties hereditarily, by removing the admin- 
istration of justice from the hands of the 
counts into those of his own itinerant 
judges, and, if we are not deceived in 
his policy, by elevating the ecclesiasti- 
cal order as a counterpoise to that of the 
nobility. Even in his time, the faults of 
the counts are the constant theme of the 
capitularies ; their dissipation and neglect 
of duty, their oppression of the poorer 
proprietors, and their artful attempts to 
appropriate the crown lands situated 
within their territory.* If Charlemagne 
was unable to redress those evils, how 
much must they have increased under 
his posterity ! That great prince seldom 
gave more than one county to the same 
person; and, as they were generally of 
moderate size, co-extensive with episco- 
pal diocesses, there was less danger, if 
this policy had been followed, of their 
becoming independent.! But Louis the 
Debonair, and, in a still greater degree, 
Charles the Bald, allowed several coun- 
ties to be enjoyed by the same person. 
The possessors constantly aimed at ac- 
quiring private estates within the limits 
of their charge, and thus both rendered 
themselves formidable, and assumed a 
kind of patrimonial right to their digni- 
ties. By a capitulary of Charles the 
Bald, A. D. 877, the succession of a son 
to the father's county appears to be rec- 
ognised as a known usage. J In the next 
century there followed an entire prostra- 
tion of the royal authority, and the counts 
usurped their governments as little sover- 
eignties, with the domains and all rega- 
lian rights, subject only to tlie feudal su- 
periority of the king.i^ They now added 



* Capitularia Car. Mag. et Lud. Pii., passim. 
Schmidt, Hist, des Allemands, t. ii.,p. 158. Gail- 
lard, Vie de Charlem., t. iii., p. 118. 

t Vaissette, Hist, de Languedoc, t. i., p. 587, 
700, and not. 87. 

t Baluzii Capitularia, t. ii., p. 263 and 269. 
This is a questionable point, and most French an- 
tiquaries consider this famous capitulary as the 
foundation of an hereditary right in counties. I 
am inclined to think that there was at least a 
practice of succession, which is implied and guar 
antied by this provision. 

^ It appears, by the record of a process in 919 



Part I.] 



FEUDAL SYSTEM, 



73 



the name of the county to their own, 
and their wives took the appellation of 
countess.* In Italy, the independence 
of the dukes was still more complete ; 
and although Otho the Great and his de- 
scendants kept a stricter rein over those 
of Germany, yet we find the great fiefs 
of their empire, throughout the tenth cen- 
tury, granted ahuost invariably to the 
male and even female heirs of the last 
possessor. 

Meanwhile, the allodial proprietors, 
Change of ^"^^^^ ^ad hitherto formed the 
allodial into Strength of the state, fell into a 
feudal te- jjiuch worsc Condition. They 
""''"■ were exposed to the rapacity of 
the counts, who, whether as magistrates 
and governors, or as overbearing lords, 
had it always in their power to harass 
them. Every district was exposed to 
continual hostilities ; sometimes from a 
foreign enemy, more often from the own- 
ers of castles and fastnesses, which in the 
tenth century, under pretence of resisting 
the Normans and Hungarians, served the 
purposes of private war. Against such a 
system of rapine, the military compact 
of lord and vassal was the only eflfectual 
shield ; its essence was the reciprocity 
of service and protection. But an insula- 
ted allodialist had no support : his for- 
tunes were strangely changed, since he 
claimed, at least in right, a share in the 
legislation of his country, and could com- 
pare with pride his patrimonial fields with 
the temporary benefices of the crown. 
Without law to redress his injuries, with- 
out the royal power to support his right, 
he had no course left but to compromise 
with oppression, and subject himself, in 
return for protection, to a feudal lord. 
During the tenth and eleventh centuries 
it appears that allodial lands in France had 
chiefly become feudal : that is, they had 
been surrendered by their proprietors, 
and received back again upon the feudal 
conditions ; or, more fi'equently, perhaps, 
the owner had been compelled to ac- 
knowledge himself the 7nati or vassal of a 
suzerain, and thus to confess an original 
grant which had never existed. f Changes 

that the counts of Toulouse had already so far 
usurped the rights of their sovereign, as to claim 
an estate on the ground of its being a royal bene- 
fice. — Hist, de Languedoc, t. ii., Appen., p. 56. 

* Vaissette, Hist, de Languedoc, t. i., p. 588, and 
infri, t. ii.,p. .38, 109, and Appendix, p. 56. 

t Hist, de Languedoc, t. ii., p. 109. It must be 
confessed, that there do not occur so many specific 
instances of this conversion of allodial tenure into 
feudal, as might be expected, in order to warrant 
the supposition in the text. Several records, how- 
ever, are quoted by Robertson, Hist. Charles V., 
note 8 ; and others may be found in diplomatic col- 
lections. A precedent for surrendering allodial prop- 



of the same nature, though not perhaps 
so extensive, or so distinctly to be traced, 
took place in Italy and Germany. Yet 
it would be inaccurate to assert that the 
prevalence of the feudal system has been 
unlimited ; in a great part of France, allo- 
dial tenures always subsisted ; and many 
estates in the empire were of the same 
description.* 

There are, however, vestiges of a very 
universal custom distinguishable 
from the feudal tenure of land, of"personal 
though so analogous to it, that it commend- 
seems to have nearly escaped """"■ 
tlie notice of antiquaries. From this si- 
lence of other writers, and the great ob- 
scurity of the subject, I am almost afraid 
to notice, what several passages in an- 
cient laws and instruments concur to 
prove, that, besides the relation establish- 
ed between lord and vassal by beneficiary 
grants, there was another species more 
personal, and more closely resembling 
that of patron and client in the Roman 
republic. This was usually called com- 
mendation; and appears to have been 
founded on two very general principles, 
both of which the distracted state of so- 
ciety inculcated. The weak needed the 
protection of the powerful ; and the gov- 
ernment needed some security for public 
order. Even before the invasion of the 
Franks, Salvian, a writer of the fifth cen- 
tury, mentions the custom of obtaining 

erty to the king, and receiving it back as his bene- 
fice, appears even in Marculfus, 1. i., form. 13. The 
county of Cominges, between the Pyrenees, Tou- 
louse, and Bigorre, was allodial till 1214, when it 
was put under the feudal protection of the Count 
of Toulouse. It devolved by escheat to the crown 
in 1443.— Villaret, t. xv., p. 346. 

In many early charters, the king confirms the 
possession even of allodial property, for greater se- 
curity in lawless times ; and, on the other hand, in 
those of the tenth and eleventh centuries, the word 
allodium is continually used for a feud, or heredita- 
ry benefice, which renders this subject still more 
obscure. 

* The maxim, Nulle terre sans seigneur, was so 
far from being universally received in France, that 
in almost all southern provinces, or pays du droit 
ecrit, lands were presumed to be allodial, unless 
the contrary was shown, or, as it was called, franc- 
aieux sans titre. The parliaments, however, seem 
latterly to have inclined against this presumption, 
and have throvni the burden of proof on the party 
claiming allodiality. For this see Denisart, Die- 
tionnaire des Decisions, art. Franc-aleu. And the 
famous maxim of the Chancellor Duprat, niiUe 
terre sans seigneur, was true, as I learn from the 
dictionary of Houard, with respect to jurisdiction, 
though false as to tenure ; allodial lands insulated 
(enclaves) within the fief of a lord, being subject 
to his territorial justice. — Diet, de ilouard, art. 
Aleu. 

In Germany, according to Du Cange. voc. Bare, 
there is a distinction between Barones and Sem- 
per-Barones ; the latter holding their lands allo- 
dially. 



74 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



the protection of the great by money, and 
blames their rapacity, though he allows 
the natural reasonableness of the prac- 
tice.* The disadvantageous condition of 
the less powerful freemen, which ended 
in the servitude of one part, and in the 
feudal vassalage of another, led such as 
fortunately still preserved their allodial 
property to ensure its defence by a stipu- 
lated payment of money. Such pay- 
ments, called Salvamenta, may be ti'aced 
in extant charters, chiefly indeed of mon- 
asteries.! In the case of private persons, 
it may be presumed that this voluntary 
contract was frequently changed by the 
stronger party into a perfect feudal de- 
pendance. From this, however, as I 
imagine, it properly differed in being ca- 
pable of dissolution at the inferior's pleas- 
ure, without incurring a forfeiture, as well 
as in having no relation to land. Hom- 
age, however, seems to have been inci- 
dent to commendation, as well as to vas- 
salage. Military service was sometimes 
the condition of this engagement. It was 
the law of France, so late at least as the 
commencement of the third race of kings, 
that no man could take a part in private 
wars except in defence of his own lord. 
This we learn from an historian about the 
end of the tenth century, who relates that 
one Erniinfrid, having been released from 
his homage to Count Burchard, on ceding 
the fief he had held of him to a monas- 
tery, renewed the ceremony on a war 
breaking out between Burchard and an- 
other nobleman, wherein he was desirous 
to give assistance; since, the author ob- 
serves, it is not, nor has been the prac- 
tice in France, for any man to be con- 
cerned in war, except in the presence or 
by the command of his lord. J Indeed, 
there is reason to infer, from the capitu- 
laries of Charles the Bald, that every man 
was bound to attach himself to some lord, 
though it was the privilege of a freeman 
to choose his own superior.^ And this 



* Du Cange, v. Salvamentum. 

t Id., Ibid. 

i Recueil des Historiens, t. x., p. 355. 

{) Unusquisque liber homo, post mortem domini 
sui, licentiam habeat se commendandi inter haec 
tria regna ad quemcunque voluerit. Similiter et 
ille qui nondum alicui commendatus est. — Baluzii 
Capitularia, tome i., p. 443. A. D. 806. Volumus 
etiam ut unusquisque liber homo in nostro regno 
Beniorem qualem voluerit in nobis et in nostris 
fidelibus recipiat. — Capit. Car. Calvi. A. D. 877. 
Et volumus ut cujuscunque nostrum homo, in cu- 
juscunque regno sit, cum seniore suo in hostem, 
vel, aliis suis utilitatibus pergat. — Ibid. See too 
Baluze, t. i., p. 536, 537. 

By the Establishments of St. Louis, c. 87, every 
stranger coming to settle within a barony was to 
acknowledge the baron as lord within a year and a 



is strongly supported by the analogy of 
our Auglo-Saxon laws, where it is fre- 
quently repeated, that no man should con- 
tinue without a lord. There are, too, as 
it seems to me, a great number of pas- 
sages in Domesday-book which confirm 
this distinction between personal com- 
mendation and the beneficiary tenure of 
land. Perhaps I may be thought to dwell 
too prolixly on this obscure custom ; but 
as it tends to illustrate those mutual re- 
lations of lord and vassal which supplied 
the place of regular government in the 
polity of Europe, and has seldom or never 
been explicitly noticed, its introduction 
seemed not improper. 

It has been sometimes said that feuds 
were first rendered hereditary in Ger- 
many by Conrad II., surnamed Edict of Con- 
the Salic. This opinion is per- "^ad iiie Saiic. 
haps erroneous. But there is a famous 
edict of that emperor at Milan, in the year 
1037, which, though immediately relating 
only to Lombardy, marks the full matu- 
rity of the system, and the last stage of 
its progress.* I have remarked already 
the custom of sub-infeudation, or grants 
of lands by vassals to be held of them- 
selves, which had grown up with the 
growth of these tenures. There had oc- 
curred, however, some disagreement, for 
want of settled usage, between these in- 
ferior vassals and their immediate lords, 
which this edict was expressly designed 
to remove. Four regulations of great 
importance are established therein ; that 
no man should be deprived of his fief, 
whether held of the emperor or a mesne 
lord, but by the laws of the empire, and 
the judgment of his peers;! that from 



day, or pay a fine. In some places, he even be- 
came the serf or villein of the lord. — Ordonnances 
des Rois, p. 187. Upon this jealousy of unknown 
settlers, which pervades the policy of the middle 
ages, was founded the droit d'aubaine, or right to 
their moveables after their decease. — See preface 
to Ordonnances des Rois, t. i., p. 15. 

The article Commendatio, in Du Gauge's Glos- 
sary, furnishes some hints upon this subject, which 
however that author does not seem to have fully 
apprehended. Carpentier, in his Supplement to 
the Glossary, under the word Vassaticum, gives 
the clearest notice of it that I have anywhere 
found. Since writing the above note, I have found 
the subject touched by M. de Montlosier, Hist, de 
la Monarchic Fran(;aise, t. i., p. 854. 

* Spelman tells us, in his Treatise of Feuds, 
chap, ii., that Conradus Salicus, a French emperor, 
but of German descent [wliAt can this mean?], went 
to Rome about 915 to fetch his crown from Pope 
John X., when, according to him, the succession 
of a son to his father's fief was first conceded. An 
almost unparalleled blunder in so learned a writer ! 
Conrad the Salic was elected at Worms in 1024, 
crowned at Rome by John XIX. in 1027, and made 
this edict at Milan in 1037. 

t Nisi secundum constitutionem antecessorum 



Part I.] 



FEUDAL SYSTEM. 



75 



such judgment an immediate vassal might 
appeal to his sovereign ; that fiefs should 
be inherited by sons and their children ; 
or, in their failure, by brothers, provided 
they were feuda paterna, such as had de- 
scended from the father ;* and that the 
lord should not alienate the fief of his 
vassal without his consent. f 

Such was the progress of these feudal 
tenures, which determined the political 
character of every European monarchy 
where they prevailed, as well as formed 
the foundations of its jurisprudence. It 
is certainly inaccurate to refer this sys- 
tem, as is frequently done, to the destruc- 
tion of the Roman empire by the northern 
nations, though in the beneficiary grants 
of those conquerors we trace its begin- 
ning. Five centuries, however, elapsed 
before the allodial tenures, which had 
been incomparably the more general, 
gave way, and before the reciprocal con- 
tract of the feud attained its maturity. It 
is now time to describe the legal quali- 
ties and eff'ects of this relation, so far 
only as may be requisite to understand 
its influence upon the political system. 

The essential principle of a fief was a 
Principles "''"tual coutract of support and 
of a feudal fidelity. Whatever obligations 
relation, jj j^j^ upou the vassal of ser- 
vice to his lord, corresponding duties 
of protection were imposed by it on 
the lord towards his vassal.;]; If these 
were transgressed on either side, the 



nostrorum, et judicium parium suorum; the very 
expressions of Magna Charta. 

* " Gerardus noteth," says Sir H. Spelman, " that 
this law settled not the feud upon the eldest son, 
or any other son of the feudatory particularly ; but 
left it in the lord's election to please himself with 
which he would." But the phrase of the edict 
runs, filios ejus beneficium tenere : which, "when 
nothing more is said, can only mean a partition 
among the sons. 

+ The last provision may seem strange, at so ad- 
vanced a period of the system ; yet, according to 
Giannone, feuds were still revocable by the lord in 
some parts of Lombardy. — Istoria di Napoli, 1. xiii., 
c. 3. It seems, however, no more than had been 
already enacted by the first clause of this edict. 
Another interpretation is possible; namely, that 
the lord should not aUenate his own seignory with- 
out his vassal's consent, which was agreeable to 
the feudal tenures. This indeed would be putting 
rather a forced construction on the words, ne do- 
mino feudum militis alienare liceat. 

X Crag., Jus Feudale,l. ii.,tit. 11. Beaumanoir, 
Coutuines de Beauvoisis, c. Ixi., p. 311. Ass. de 
Jerus., c. 217. Lib. Feud., 1. ii., tit. 26, 47. 

Upon the mutual obligation of the lord towards 
his vassal seems to be founded the law of warranty, 
which compelled him to make indemnification 
where the tenant was evicted of his land. This 
obhgation, however unreasonable it may appear to 
us, extended, according to the feudal lawyers, to 
cases of mere donation. — Crag., 1. ii.,tit. 4. But- 
ler's Notes on Co. Litt., p. 365. 



one forfeited his land, the other his 
seigniory, or rights over it. Nor were 
motives of interest left alone to operate 
in securing the feudal connexion. The 
associations founded upon ancient custom 
and friendly attachment, the impulses of 
gratitude and honour, the dread of infamy, 
the sanctions of religion, were all em- 
ployed to strengthen these ties, and to 
render them equally powerful with the 
relations of nature, and far more so than 
those of political society. It is a ques- 
tion agitated among the feudal lawyers, 
whether a vassal is bound to follow the 
standard of his lord against his own 
kindred.* It was one more important, 
whether he must do so against the king. 
In the works of those who wrote when 
the feudal system was declining, or who 
were anxious to maintain the royal 
authority, this is commonly decided in 
the negative. Littleton gives a form of 
homage, with a reservation of the allegi- 
ance due to the sovereign ;t and the same 
prevailed in Normandy and some other 
countries. I A law of Frederick Barba- 
rossa enjoins, that in every oath of fealty 
to an inferior lord, the vassal's duty to the 
emperor should be expressly reserved. 
But it was not so during the height of the 
feudal system in France. The vassals 
of Henry II. and Richard I. never hesi- 
tated to adhere to them against the sover- 
eign, nor do they appear to have incur- 
red any blame on that account. Even 
so late as the age of St. Louis, it is laid 
down in his establishments, that if justice 
is refused by the king to one of his vas- 
sals, he might summon his own tenants, 
under penalty of forfeiting their fiefs, to 
assist him in obtaining redress by arms.^ 



* Crag., 1. ii., tit. 4. f Sect. Ixxxt. 

% Houard, Anc. Loix des Francois, p. 114. See 
too an instance of this reservation in Recueil des 
Historiens, t. xi., 447. 

(f Si le Sire dit a son homme lige ; Venez vous 
en avec moi, je veux guerroyer mon Seigneur, qui 
me denie le jugement de sa cour, le vassal doit re- 
pondre ; j'irai scavoir, s'il est ainsi que vous me 
dites. Alors il doit aller trouver le superieur, et 
luy dire : Sire, le gentilhomme de qui je tiens mon 
fief, se plaint que vous lui refusez justice ; je viens 
pour en scavoir la verite ; car je suis semonce de 
marcher en guerre contre vous. Si la reponse est 
que volontiers il fera droit en sa cour, I'homme 
n'est point oblige de deferer a la requisition du 
Sire; mais il doit, ou le sui\re, ou se resoudre a 
perdre son fief, si le chef Seigneur persiste dans 
son refus. — Etablissemens de St. Louis, c. 49. I 
have copied this from Velly, t. vi., p. 213, who haa 
modernized the orthography, which is almost unin- 
telligible in the Ordonnances des Rois. One MS. 
gives the reading Roi instead of Seigneur. And the 
law certainly applies to the king exclusively ; for, in 
case of denial of justice by a mesne lord, there was 
an appeal to the king's court, but from his injury 
there could be no appeal but to the sword. 



76 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



The Count of Britany, Pierre de Dreux, 
had practically asserted this feudal right 
during the minority of St. Louis. In a 
public instrument he announced to the 
world that, having met with repeated in- 
juries from the regent, and denial of jus- 
tice, he had let the king know that he no 
longer considered himself as his vassal, 
but renounced his homage and defied 
him.* 

The ceremonies used in conferring a 
fief were principally three : homage, fe- 
Cercmonies of, ^Ity, and investiture. 1. The 

1. Homage. first was designed as a signif- 
icant expression of the submission and 
devotedness of the vassal towards his 
lord. In performing homage, his head 
was uncovered, his belt ungirt, his sword 
and spurs removed ; he placed his hands, 
kneehng, between those of the lord, and 
promised to become his man from thence- 
forward ; to serve him with life and limb 
and Avorldly honour, faithfully and loyal- 
ly, in consideration of the lands which he 
held under him. None but the lord in 
person could accept homage, which was 
commonly concluded by a kiss.f 2. An 

oath of fealty was indispensable 

2. Fealty, j^^ every fief; but the ceremony 
was less peculiar than that of homage, 
and it might be received by proxy. It 
was taken by ecclesiastics, but not by 
minors ; and in language differed little 

3. inves- from the form of homage. | 3. In- 
titure. vestiture, or the actual convey- 
ance of feudal lands, was of two kinds ; 
proper and improper. The first was an 
actual putting in possession upon the 
ground, either by the lord or his deputy ; 
which is called, in our law, livery of 
seisin. The second was symbolical, and 
consisted in the delivery of a turf, a 

* Du Cange, Observations sur Joinville, in Col- 
lection des Memoires, t. i., p. 196. It was always 
necessary for a vassal to renounce his homage be- 
fore he made war on his lord, if he would avoid 
the shame and penalty of feudal treason. After a 
reconciliation, the homage was renewed. And in 
this no distinction was made between the king and 
another superior. Thus Henry II. did homage to 
the King of France in 1188, having renounced his 
former obligation to him at the commencement of 
the preceding war. — Matt. Paris, p. 126. 

+ Du Cange, Hominium, and Carpentier's Sup- 
plement, id. voc. Littleton, s. 85. Assises de Jeru- 
salem, c. 204. Crag., l.i., tit. 11. RecueildesHis- 
toriens, t. ii., preface, p. 174. Homagium per pa- 
ragium was unaccompanied by any feudal obliga- 
tion, and distinguished from homagium ligeum, 
which carried with it an obligation of fidelity. The 
dukes of Normandy rendered only homage per 
paragium to the kings of France, and received the 
like from the dukes of Britany. In liege homage, 
it was usual to make reservations of allegiance 
to the king, or any other lord whom the homager 
had previously acknowledged. 

% Littl., 8. 91. Du Cange, voc. FideUtas. 



stone, a wand, a branch, or whatever else 
might have been made usual by the ca- 
price of local custom. Du Cange enu- 
merates not less than ninety-eight varie- 
ties of investitures.* 

Upon investiture, the duties of the vas- 
sal commenced. These it is im- obligations 
possible to define or enumerate ; or a vassal, 
because the services of military tenure, 
which is chiefly to be considered, were 
in their nature uncertain, and distinguish- 
ed as such from those incident to feuds 
of an inferior description. It was a 
breach of faith to divulge the lord's coun- 
sel, to conceal from him the machinations 
of others, to injure his person or fortune, 
or to violate the sanctity of his roof and 
the honour of his family. f In battle he 
was bound to lend his horse to his lord 
when dismounted ; to adhere to his side 
while fighting ; and to go into captivity, 
as a hostage for him, when taken. His 



* Du Cange, voc. Investiture. 

+ Assises de Jerusalem, c. 265. Home ne doit 
a la feme de son seigneur, ne a sa fille requerre vi- 
lainie de son cors, ne a sa soeur tant co7n die est de- 
moiselle en son hostel I mention this part of feudal 
duty on account of the light it throws on the stat- 
ute of treasons, 25 E. Hi. One of the treasons 
therein specified is, si omne violast la compaigne 
le roy, ou Icigni file leroy nient marii ou la compaig- 
ne leigne fitz et heire le roy. Those who, like Sir 
E. Coke and the modern lawyers in general, ex- 
plain this provision by the political danger of con- 
fusing the royal blood, do not apprehend its spirit. 
It would be absurd, upon such grounds, to render 
the violation of the king's eldest daughter trea.son- 
able, so long only as she remains unmarried, when, 
as is obvious, the danger of a spurious issue inher- 
iting could not arise. I consider this provision 
therefore as entirely founded upon the feudal prin- 
ciples, which make it a breach of faith (that is, in 
the primary sense of the word, a treason) to sully 
the honour of the lord in that of the near relations 
who were immediately protected by residence in 
his house. If it is asked why this should be re- 
stricted by the statute to the person of the eldest 
daughter, I can only answer that this, which is not 
more reasonable according to the common political 
interpretation, is analogous to many feudal cus- 
toms in our own and other countries, wliich attrib- 
ute a sort of superiority in dignity to the eldest 
daughter. 

It may be objected, that in the reign of Edward 
III. tjjere was httle left of the feudal principle in 
any part of Europe, and least of all in England. 
But the statute of treasons is a declaration of the 
ancient law, and comprehends, undoubtedly, what 
the judges who drew it could find in records now 
perished, or in legal traditions of remote antiquity. 
Similar causes of forfeiture are enumerated in the 
Libri Feudorum, 1. i., tit. 5, and 1. ii., tit. 24. In the 
establishments of St. Louis, c. 51, 52, it is said, 
that a lord seducing his vassal's daughter intrust- 
ed to his custody, lost his seigniory ; a vassal 
guilty of the same crime towards the family of his 
suzerain, forfeited his land. A proof of the tendency 
which the feudal law had to purify public morals, 
and to create that sense of indignation and resent- 
ment with which we now regard such breaches of 
honour. 



Part I.] 



FEUDAL SYSTEM. 



77 



attendance was due to the lord's courts, 
sometimes to witness, and sometimes to 
bear a part in, the administration of jus- 
tice.* 

The measure, however, of miUtary ser- 
Limitations vice, was generally settled by 
of iniiiiary some usage. Forty days was 
service. jj^g usual term, during which 
the tenant of a knight's fee was bound to 
be in the field at his own expense. f This 
Avas extended by St. Louis to sixty days, 
except when the charter of infeudation 
expressed a shorter period. But the 
length of service diminislied with the 
quantity of land. For half a knight's fee 
but twenty days were due ; for an eighth 
part but five; and when this was com- 
muted for an escuage, or pecuniary as- 
sessment, the same proportion was ob- 
served. J Men turned of sixty, public 
magistrates, and, of course, women, were 
free from personal service, but obliged 
to send their substitutes. A failure in 
this primary duty incurred perhaps strict- 
ly a forfeiture of the fief. But it was 
usual for the lord to inflict an amerce- 

* Assises de Jerusalem, c. 222. A vassal, at 
least in many places, was bound to reside upon 
his fief, or not to quit it without the lord's consent. 
— Du Cange, voc. Reseantia, Remanentia. Recu- 
eil des Historiens, t. xi., preface, p. 172. 

t In the kingdom of Jerusalem, feudal service 
extended to a year. — Assises de Jerusalem, c. 230. 
It IS obvious that this was founded on the peculiar 
circumstances of that state. Service of castle- 
guard, which was common in the north of England, 
was performed without limitation of time. — Lyttle- 
ton's Henry II., vol. ii., p. 184. 

t Du Cange, voc. Feudum militis ; Membrum 
Loricae. Stuart's View of Society, p. 382. This 
division by knights' fees is perfectly familiar in the 
feudal law of England. But I must confess my 
inability to adduce decisive evidence of it in that 
of France, with the usual exception of Normandy. 
According to the natural principle of liefs, it might 
seem that the same personal service would be re- 
quired from the tenant, whatever were the extent 
of his land. William the Conqueror, we know, dis- 
tributed this kingdom into about 60,000 parcels of 
nearly equal value, from each of which the service 
of a soldier was due. He may possibly have been 
the inventor of this politic arrangement. Some rule 
must, however, have been observed in all countries 
in fixing the amercement for absence, which could 
only be equitable if it bore a just proportion to the 
value of the fief. And the principle of the knight's 
fee was so convenient and reasonable, that it is 
likely to have been adopted in imitation of England 
by other feudal countries. In the roll of Philip 
III.'s expedition, as will appear by a note immedi- 
ately below, there are, I think, several presumptive 
evidences of it ; and though this is rather a late 
authority to establish a feudal principle, yet I have 
ventured to assume it in the text. 

The knight's fee was fixed in England at the an- 
nual value of 201. Every estate supposed to be 
of this value, and entered as such in the rolls of the 
exchequer, was bound to contribute the service of 
a soldier, or to pay an escuage to the amount as- 
sessed upon knights' fees. 



ment, known in England by the name of 
escuage.* Thus, in Philip IlL's expedi- 
tion against the Count de Foix, in 1274, 
barons were assessed for their default of 
attendance, at a hundred sous a day for 
the expenses which they had saved, and 
fifty sous as a fine to the king ; banner- 
ets, at twenty sous for expenses, and ten 
as a fine ; knights and squires in the same 
proportion. But barons and bannerets 
were bound to pay an additional assess- 
ment for every knight and squire of their 
vassals whom they ought to have brought 
with them into the field. f The regula- 
tions as to place of service wei-e less uni- 
form than those which regard time. In 
some places, the vassal was not bound 
to go beyond the lord's territory ,J or only 
so far as he might return the same day. 
Other customs compelled him to follow 
his chief upon all his expeditions.^ These 
inconvenient and varying usages betray 
the origin of the feudal obligations, not 
founded upon any national policy, but 
springing from the chaos of anarchy and 
intestine war, which they were well cal- 
culated to perpetuate. For the public de- 
fence, their machinery was totally unser- 
viceable, until such changes were wrought 
as destroyed the character of the fabric. 

Independently of the obligations of fe- 
alty and service, which the nature of t!ie 
contract created, other advantages were 
derived from it by the lord, which have 
beencalled feudal incidents; these Feudal 
were, 1. Reliefs. 2. Fines upon incidents. 
alienation. 3. Escheats. 4 Aids ; to 
which may be added, though not general- 
ly established, 5. Wardship, and 6. Mar- 
riage. 

1 . Some writers have accounted for re- 
liefs in the following manner. Ben- jjgjjgfj 
efices, whether depending upon the 
crown or its vassals, were not originally 
granted by way of absolute inheritance, 
but renewed from time to time upon the 



* Littleton, 1. ii., c. 3. Wright's Tenures, p. 121. 

t Du Chesne, Script. Rerum Gallicarum, t. v., 
p. 553. Daniel, Histoire de la Milice Fran<;oise, p. 
72. The following extracts from the muster-roll of 
this expedition will illustrate the varieties of feudal 
obligation. Johannes d'Ormoy debet servitiumper 
quatuor dies. Johannes Malet debet servitium per 
viginti dies, pro quo servitio misit Richardum Ti- 
chet. Guido de Laval debet servitium duorum 
militum et dimidii. Dominus Sabrandiis dictus 
Chabot dicit quod non debet servitium domino regi, 
nisi in comitatu Pictaviensi, et ad sumptus regis, 
tamen venit ad preces regis cumtribus militibus et 
duodecim scutiferis. Guido de Lusigniaco Dom. 
de Pierac dicit, quod non debet aliquid regi praster 
homagium. 

t This was the custom of Beauvoisis.— Beau- 
manoir, c. 2. 

§ Du Cange, et Carpentier, voc. Hostis. 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IL 



death of the possessor, till long custom 
grew up into right. Hence a sum of 
money, something between a price and a 
gratuity, would naturally be offered by 
the heir on receiving a fresh investiture 
of the fief ; and length of time might as 
legitimately turn this present into a due 
of the lord, as it rendered the inheritance 
of tlie tenant indefeisible. This is a very 
specious account of the matter. But 
those who consider the antiquity to which 
hereditary benefices may be traced, and 
the unreserved expressions of those in- 
struments by which they were created, 
as well as the undoubted fact that a large 
proportion of fiefs had been absolute 
allodial inheritances, never really granted 
by the superior, will perhaps be led rath- 
er to look for the origin of reliefs in that 
rapacity with which the powerful are 
ever ready to oppress the feeble. When 
a feudal tenant died, the lord, taking ad- 
vantage of his own strength and the con- 
fusion of the family, would seize the es- 
tate into his hands, either by the right of 
force or under some litigious pretext. 
Against this violence the heir could in gen- 
eral have no resource but a compromise ; 
and we know how readily acts of succes,s- 
ful injustice change their name, and move 
demurely, like the wolf in the fable, under 
the clothing of law. Reliefs and other 
feudal incidents are said to have been es- 
tabhshed in France* about the latter part 
of the tenth century, and they certainly 
appear in the famous edict of Conrad the 
Salic, in 1037, which recognises the usage 
of presenting horses and arms to the lord 
upon a change of tenancy. f But this also 
subsisted under the name of heriot, in 
England, as early as the reign of Canute. 
A relief was a sum of money (unless 
where charter or custom introduced a dif- 
ferent tribute) due from every one of full 
age taking a fief by descent. This was in 
some countries arbitrary, or ad misericor- 
diam, and the exactions practised under 
this pretence, both upon superior and in 
ferior vassals, ranked among the greatest 
abuses of the feudal policy. Henry I. of 
England promises in his charter that they 
shall in future be just and reasonable ; 
but the rate does not appear to have been 
finaUy settled, till it was laid down in 
Magna Charta, at about the fourth of the 
annual value of the fief. We find also 



* Ordonnances des Rois de France, t. i., pre- 
face, p. 10. 

1 Servatousuvalvassorum majonim intradendis 
armis equisque suis senioribus. This, among oth- 
er reasons, leads me to doubt the received opinion, 
that Italian fiefs were not hereditary before the 
promulgation of tliis edict. 



fixed reliefs among the old customs of 
Normandy and Beauvoisis. By a law of 
St. Louis, in 1245,* the lord was entitled 
to enter upon the lauds, if the heir could 
not pay the relief, and possess them for 
a year. This right existed uncondition- 
ally in England under the name of primer 
seisin, but was confined to the king.f 

2. Closely connected with reliefs were 
the fines paid to the lord upon Fines upon 
the alienation of his vassal's aiienaiion. 
feud ; and indeed we frequently find them 
called by the same name. The spirit of 
feudal tenure established so intimate a 
connexion between the two parties, that 
it could be dissolved by neither without 
requiring the other's consent. If the lord 
transferred his seigniory, the tenant was 
to testify his concurrence ; and this cer- 
emony was long kept up in England un- 
der the name of attornment. The assent 
of the lord to his vassal's alienation was 
still more essential, and more difticult to 
be attained. He had received his fief, it 
Avas supposed, for reasons peculiar to 
himself or to his family ; at least, his 
heart and arm were bound to his supe- 
rior; and his service was not to be ex- 
changed for that of a stranger, who might 
be unable or unwilling to render it. A 
law of Lothaire II. in Italy forbids the 
alienation of fiefs without the lord's con- 
sent.J This prohibition is repeated in 
one of Frederick I., and a similar enact- 
m.ent was made by Roger, king of Sicily.^ 
By the law of France, the lord was enti- 
tled, upon every alienation made by his 
tenant, either to redeem the fief by pay- 
ing the purchase-money, or to claim a 
certain part of the value, by way of fine, 
upon the change of tenancy. || In Eng- 

* Ordonnances des Rois, p. 55. 

t Du Cange, v. Placitum, Relevium, Sporla. 
By many customs a relief was due on every change 
of the lord, as well as of the vassal ; but this was 
not the case in England. Beaumont speaks of re- 
liefs as due only on collateral succession. — Coii- 
tumes de Beauvoisis, c. 27. In Anjou and Maine 
they were not even due upon succession between 
brothers. — Ordonnances des Rois, t. i., p. 58. And 
JI. de Pastoret, in his valuable preface to the six- 
teenth volume of that collection, says it was a rule, 
that the king had nothing upon Imeal succession 
of a tief, whether in the ascending or descending 
line, but la louche et Ics mains ; i. e. homage and 
fealty, p. 20. 

X Lib. Feudorum, 1. ii., tit. 9 and 52. This was 
principally levelled at the practice of alienating 
feudal property in favour of the church, which was 
called pro anima judicare. — Radevicus in Gestis 
Frederic. I., 1. iv., c. 7. Lib. Feud., 1. i., tit. 7, 1 6 ; 
1. ii., tit. 10. 

ij Giannone, 1. ii., c. 5. 

II Du Cange, v. Reaccapitum, Placitum, Racha- 
tum. Pastoret, preface au seizienie tome des 
Ordonnances, p. 20. Houard, Diet, du Droit Nor- 
mand, art. Fief. Argou, Inst, du Droit Francois, L 



Part I.] 



FEUDAL SYSTEM. 



79 



land, even the practice of sub-infeudation, 
which was more conformable to the law 
of fiefs and the military genius of the sys- 
tem, but injurious to the suzerains, who 
lost thereby their escheats and other ad- 
vantages of seigniory, was checked by 
Magna Charta,* and forbidden by the 
statute 18 Edward I., called Quia Emp- 
tores, which at the same time gave the 
' liberty of alienating lands, to be holden 
of the grantor's immediate lord. The 
tenants of the crown were not included 
in this act; but that of 1 Edward III., c. 12, 
enabled them to alienate, upon the pay- 
ment of a composition into chancery, 
which was fixed at one third of the annual 
value of the lands. f 

These restraints, placed for the lord's 
advantage upon the transfer of feudal 
property, are not to be confounded with 
those designed for the protection of heirs 
and preservation of families. Such were 
the jus prolimeseos, in the books of the 
fiefs,f and retrait lignager of the French 
law, which gave to the relations of the 
vender a pre-emption upon the sale of 
any fief, and a right of subsequent re- 
demption. Such was the posiiive pro- 
hibition of alienating a fief held by de- 
scent from the father (feudum pater- 
num), without the consent of the kindred 
on that line.§ Such, too, were the still 



ii., c. ii. In Beaumanoir's age and district at least, 
sub-infeudation without the lord's license incurred 
a forfeiture of the land ; and his reason extends of 
course more strongly to alienation. — Coutumes de 
Beauvoisis, c. 2. Velly, t. vi., p. 187. But, by the 
general law of feuds, the former was strictly regu- 
lar, while the tenant forfeited his land by the latter. 
Craig mentions this distinction as one for which he 
is perplexed to account. — Jus Feudale, I. iii,, tit. 3, 
p. 632. It is, however, perfectly intelligible upon 
the original principles of feudal tenure. 

* Dalrymple seems to sappose that the 32d chap- 
ter of Magna Charta relates to alienation, and not 
to sub-infeudation. — Essay on Feudal Properly, 
ed. 1759, p. 83. See Sir E. Coke, 2 Inst., p. 65 and 
501 ; and Wright on Tenures, contr^,. Mr. Har- 
grave observes, that " the history of our law with 
respect to the powers of alienation, before the stat- 
ute of Quia emptores terrarum, is very much in- 
volved in obscurity." — Notes on Co. Litt., 43, a. 
In Glanville's time, apparently, a man could only 
aliens-.te (to hold of himself) rationabilem partem 
de terra, sua, 1. vii., c. 1. But this may have been 
in favour of the kindred, as much as of the lord. — 
Dalrymple's Essay, ubi supra. 

It is probable that Coke is mistaken in supposing 
that, " at the common law, the tenant might have 
made a feoffment of the whole tenancy to be hold- 
en of the lord." 

+ 2 Inst., p. 66. Blackstone's Commentaries, 
vol. ii., c. 5. 

t Lib. Feud, 1. v.,t. 13. There were analogies to 
this jus TT^oTifiriacu); in the Roman law, and, still 
more closely, in the constitutions of the later By- 
zantine emperors. 

^ Alienatio feudi paterni non valet etiam domini 



more rigorous fetters imposed by the En- 
glish statute of entails, which precluded 
all lawful alienation, till, after two centu- 
ries, it was overthrown by the fictitious 
process of a common recovery. Though 
these partake in some measure of the feu- 
dal spirit, and would form an important 
head in the legal history of that system, 
it will be sufficient to allude to them in 
a sketch, which is confined to the devel- 
opment of its political influence. 

A custom very similar in eff'ect to sub- 
infeudation, was the tenure by frerage, 
which prevailed in many parts of France. 
Primogeniture, in that extreme which 
our common law has established, was 
unknown, I believe, in every country 
upon the continent. The customs of 
France found means to preserve the dig- 
nity of families, and the indivisibility of 
a feudal homage, without exposing the 
younger sons of a gentleman to absolute 
beggary or dependance. Baronies indeed 
were not divided ; but the eldest sou was 
bound to make a provision in money, by 
way of appanage, for the other children, 
in proportion to his circumstances and 
their birth.* As to inferior fiefs, in many 
places, an equal partition was made ; in 
others, the eldest took the chief portion, 
generally two thirds, and received the 
homage of his brothers for the remaining 
part, which they divided. To the lord of 
whom the fief was held, himself did hom- 
age for the whole. f In the early times 
of the feudal policy, when military ser- 
vice was the great object of the relation 
between lord and vassal, this, like all oth- 
er sub-infeudation, was rather advanta- 
geous to the former. For, when the 
homage of a fief was divided, the sen'ice 
was diminished in proportion. Suppose, 
for example, the obligation of military 
attendance for an entire manor to have 
been forty days ; if that came to be equal- 
ly split among two, each would owe but 
a service of twenty. But if, instead of 
being homagers to the same suzerain, 
one tenant held immediately of the other, 



voluntate, nisi agnatis consentientibus. — Lib. Feud, 
apud Wright on Tenures, p. 108 and 156. 

* Du Cange, v. Apanamentum, Baro. Baronie 
ne depart mie entre freres se leur pere ne leur a 
fait partie ; mes Ii ainsnez doit faire avenant bien- 
fet au puisne, et si doit les filles marier. — Etablis- 
sem. de St. Louis, c. 24. 

t This was also the law of Flanders and Hai- 
nault. — Martenne, Thesaurus Anecdotor., t. i., p, 
1092. The customs as to succession were exceed- 
ingly various, as indeed they continued to be until 
the late generalization of French law.— Recueil 
des Histor., t. ii., preface, p. 108 ; Hist, de Langue- 
doc, t. ii., p. Ill and 511. In the former work it 
is said that primogeniture was introduced by the 
Normans from Scandinavia 



80 



EUROPE DURING THE MIDDLE AGES. 



[Chap H, 



as every feudatory might summon the 
aid of his own vassals, the superior lord 
would in lact obtain the service of both. 
Whatever opposition, therefore, was 
made to the rights of sub-iufeudation or 
frerage, would indicate a decay in the 
mihtary character, the living principle of 
feudal tenure. Accordingly, in the reign 
of Philip Augustus, when the fabric was 
begiinhng to shake, we find a confederate 
agreement of some principal nobles, sanc- 
tioned by the king, to abrogate the mesne 
tenure of younger brothers, and estab- 
lisli an immediate dependance of each 
upon the superior lord.* This, however, 
was not universally adopted, and the ori- 
ginal frerage subsisted to the last in some 
of the customs of France. f 

3. As fiefs descended but to the poster- 
Esciieats ity of the first taker, or at the ut- 
and forfeits, niost to his kindred, they neces- 
sarily became sometimes vacant for want 
of heirs ; especially where, as in England, 
there was no power of devising them by 
will. In this case, it was obvious that 
they ought to revert to the lord, from 
whose property they had been derived. 
These reversions became more frequent 
through the forfeitures occasioned by the 
vassaPs delinquency, either towards his 
superior lord or the state. Various cases 
are laid down in the Assises de Jerusa- 
lem, where the vassal forfeits his land, 
for a year, for his life, or for ever. J But 
under rapacious kings, such as the Nor- 
man line in England, absolute forfeitures 
came to prevail, and a new doctrine was 
introduced, the corruption of blood, by 
which the heir was efi'ectually excluded 
from deducing his title, at any distant 
time, through an attainted ancestor. 

4. Reliefs, fines upon alienation, and 
escheats, seem to be natural reser- 
vations in the lord's bounty to his 

vassal. He had rights of another class, 
which principally arose out of fealty and 
intimate attachment. Such were the 
aids which he was entitled to call for in 
certain prescribed circumstances. These 
depended a great deal upon local custom, 
and were often extorted unreasonably. 
Du Cange mentions several as having 
existed in France ; such as an aid for the 
lord's expedition to the Holy Land, for 
marrying his sister or eldest son, and for 
paying a relief to his suzerain on taking 
possession of his land.^ Of these, the 
last appears to have been the most usual 
in England. But this, and other aids oc- 



* Ordonnances des Rois, t. i., p. 29. 
+ Du Cange, Dissert. III. sur Joinville. Beau- 
manoir, c. 47. 
t C. 200, 201. ^ Du Cange, voc. Auxiliura, 



casionally exacted by the lords, were felt 
as a severe grievance ; and by Magna 
Charta three only are retained ; to make 
the lord's eldest son a knight, to marry 
his eldest daughter, and to redeem his 
person from prison. They were restrict- 
ed to nearly the same description by a 
law of William I. of Sicily, and by the 
customs of France.* These feudal aids 
are deserving of our attention, as the be- 
ginnings of taxation, of which for a long 
time they in a great measure answered the 
purpose, till the craving necessities and 
covetous policy of kings substituted for 
them more durable and onerous burdens. 

I might here, perhaps, close the enu- 
meration of feudal incidents, but that the 
two remaining, wardship and marriage, 
though only partial customs, were those 
of our own country, and tend to illustrate 
the rapacious character of a feudal aris- 
tocracy. 

5. In England, and in Normandy, which 
either led the way to or ado.pted all these 
English institutions, the lord had wardship, 
the wardship of his tenant during 
minority.! By virtue of this right, he 
had both the care of his person, and re- 
ceived to his own use the profits of the 
estate. There is something in this cus- 
tom very conformable to the feudal spir- 
it ; since none was so fit as the lord to 
train up his vassal to arms ; and none 
could put in so good a claim to enjoy the 
fief, while the military service for which it 
had been granted w^as suspended. This 
privilege of guardianship seems to have 
been enjoyed by the lord in some parts 
of Germany;! but in the law of France, 
the custody of the land was intrusted to 
the next heir, and that of the person, as 
in soccage tenures among us, to the near- 
est kindred of that blood which could not 
inherit.^ By a gross abuse of this cus- 

* Giannone, 1. xii., c. 5. Velly, t. vi., p. 200. 
Ordonnances des Rois. t. i., p. 138; t. xvi., preface. 

t Recueil des Historiens, t. xi., pref., p. 162; 
Argou, Inst, an Droit Francois, 1. i., c. 6; Houard, 
Anciennes Loix des Fran(;ois, t. i., p. 147. 

X Schilter, Institutinnes Juris Feudalis, p. 85. 

(j Du Cange, v. Ciistodia. Assises de Jerusalem, 
c. 178; Etablissemens de St. Louis, c. 17; Beau- 
manoir, c. 15; Argou, !. i., c. 6. The second of 
these uses nearly the same expression as Sir John 
Fortescue in accounting for the exclusion of the 
next heir from guardianship of the person ; that 
mauvaise convoitise li fairoit faire la garde du loup. 

I know not any mistake more usual in English 
writers who have treated of the feudal law, thar» 
that of supposing that guardianship in chivalry was 
a universal custom. A charter of 1198, in Rymer, 
t. i., p. 105, seems indeed to imply that the inci- 
dents of garde noble and of marriage existed in the 
Isle of Oleron. But Eleanor, by a later instrument, 
grants that the inhabitants of that island should 
have the wardship and mai riage of their heirs with 



Part 1.] 



FEUDAL SYSTEM. 



81 



torn in England, the right of guardianship 
in chivalry, or temporary possession of 
the lands, was assigned over to strangers. 
This was one of the most vexatious parts 
of our feudal tenures, and w as never per- 
haps more sorely felt, than in their last 
stage under the Tudor and Stuart families. 

6. Another right given to the lord by 
^ . the Norman and English laws 

""'^^*" was that of marriage, or of ten- 
dering a husband to his female wards, 
while under age, whom they could not 
reject without forfeiting tlie value of the 
marriage ; that is, as much as any one 
would give to the guardian for such an 
alliance. This was afterward extended 
to male wards ; and became a very lucra- 
tive source of extortion to the crown,- as 
well as to mesne lords. This custom 
seems to have had the same extent as 
that of wardships. It is found in the an- 
cient books of Germany, but not of 
France.* The kings, however, and even 
inferior lords of that country, required 
their consent to be solicited for the mar- 
riage of their vassals' daughters. Sev- 
eral proofs of this occur in the history, 
as well as in the laws of France ; and 
the same prerogative existed in Germa- 
ny, Sicily, and England.! A still more 
remarkable law prevailed in the kingdom 
of Jerusalem. The lord might summon 

out any interposition, and expressly abrogates all 
the evil customs that her husband had introduced. 
— P. 112. From hence I should infer, that Henry 
II. had endeavoured to impose these feudal bur- 
dens (which perhaps were then new even in Eng- 
land) upon his contmental dominions. Radulphus 
de Diceto tells us of a claim made by him to the 
wardship of Chateauroux in Berry, which could 
not legally have been subject to that custom. — 
Twysden X. Scriptores, p. 599. And he set up 
pretensions to the custody of the dutchy of Brit- 
any, after the death of his son Geoffrey. This 
might perhaps be justified by the law of Norman- 
dy, on which Brilany depended. But Philip Au- 
gustus made a similar claim. In fact, these polit- 
ical assertions of right, prompted by ambition, and 
supported by force, are bad precedents to establish 
rules of jurisprudence. Both Philip and Henry 
were abundantly disposed to realize so convenient 
a prerogative as that of guardianship in chivalry 
over the fiefs of their vassals. — Lyttleton's Henry 
II., vol. iii., p. 441. 

* Schilter, ubi supra. Du Cange, voc. Dispara- 
gare, seems to admit this feudal right in France . 
but the passages he quotes do not support it. See 
also the word Maritagium. 

+ Ordonnances des Rois, t. i., p. 155 ; Assises 
de Jerus., c. 180, and Thaumassi^re's note. Du 
Cange, ubi supra. Glanvil.,1. vii.,c. 12. Giannone, 
1. x:., c. 5. Wright on Tenures, p. W. St. Louis 
in return declared that he would not marry his 
own daughter without the consent of his barons. 
— Joinvilie, t. ii., p. 140. Henry I. of England had 
promised the same. 'l"he guardian of a female mi- 
nor was obliged to give security to her lord not to 
marry her without lus conseat.— Etablisseraens de 
St. Louis, c. 63. 



any female vassal to accept oue of threo 
whom he should propose as her hus 
band. No other condition seems to have 
been imposed on him in selecting these 
suiters, than that they should be of equal 
ranl^ with herself. Neither the maiden's 
coyness, nor the widow's affliction, nei- 
ther aversion to the proffered candidates, 
nor love to one more favoured, seem to 
have passed as legitimate excuses. One, 
only one plea, could come from the lady's 
mouth, who was resolute to hold her 
land in single blessedness. It was,, that 
she was past sixty years of age ; and, af- 
ter this unwelcome confession, it is just- 
ly argued by the author of the law-book 
which I quote, that the lord could not de- 
cently press her into matrimony.* How- 
ever outrageous such a usage may ap- 
pear to our ideas, it is to be recollected 
that the peculiar circumstances of that 
little state rendered it indispensable to 
possess in every fief a proper vassal to 
fulfil the duties of war. 

These feudal servitudes distinguish the 
maturity of the system. No trace of them 
appears in the capitularies of Charle- 
magne and his family, nor in the instru- 
ments by which benefices were granted. 
I believe that they did not make part of 
the regular feudal law before the eleventh, 
or perhaps the twelfth century, though 
doubtless partial usages of this kind had 
grown up antecedently to either of those 
periods. If I am not mistaken, no allusion 
occurs to the lucrative rights of seignio- 
ry in the Assises de Jerusalem, which 
are a monument o( French usages in 
the eleventh century. Indeed, that very 
general commutation of allodial prop- 
erty into tenure, which took place be- 
tween the middle of the ninth and elev- 
enth centuries, would hardly have been ef- 
fected, if fiefs had then been liable to such 
burdens and so much extortion. In half- 
barbarous ages, the strong are constant- 
ly encroaching upon the weak ; a truth 
which, if it needed illustration, might find 
it in the progress of the feudal system. 

We have thus far confined our inquiry 
to fiefs holden on terms of mill- proper and 
tary service ; since those are improper 
the most ancient and regular, as '^^"''^' 
well as the most consonant to the spirit 
of the system. They alone were called 
proper feuds, and all were presumed to 
be of this description, until the contrary 
was proved by the charter of investiture. 
A proper feud was bestowed without 

* Ass. de Jerus., c. 224. I must obser^'e, that 
Lauriere says this usage prevailed en plusieurs 
lieux, though he quotes no authority. — Ordomiau 
ces des Kois, p. 155. 



82 



EUROPE DURING THE MIDDLE AGES. 



[Chap. U 



price, without fixed stipulation, upon a 
vassal capable of serving personally in 
the field. But gradually, with the help 
of a little legal ingenuity, improper fiefs 
of tlie most various kinds were intro- 
duced, retaining little of the charac^pris- 
tics, and less of the spirit, which distin- 
guished the original tenures. Women, if 
indeed that were an innovation, were 
admitted to inherit them ;* they Avere 
granted for a price, and without refer- 
ence to military service. The language 
of the feudal law was applied by a kind 
of metaphor to almost every transfer of 
property. Hence, pensions of money, and 
allowances of provisions, however remote 
from right notions of a fief, were some- 
times granted under that name ; and even 
where land was the subject of the dona- 
tion, its conditions were often lucrative, 
often honorary, and sometimes ludi- 
crous. f 

There is one extensive species of feu- 
Fiefs of dal tenure which may be distinctly 
office, noticed. The pride of wealth in 
the middle ages was principally exhibit- 
ed in a multitude of dependants. The 
court of Charlemagne was crowded with 
officers of every rank, some of the most 
eminent of whom exercised functions 
about the royal person which would 
have been thought fit only for slaves in 
the palace of Augustus or Antonine. 
The free-borii Franks saw nothing me- 
nial in the titles of cup-bearer, steward, 
marshal, and master of the horse, which 
are still borne by the noblest families in 
every country of Europe, and by sover- 
eign princes in the empire. From the 
court of the king, this favourite piece of 
magnificence descended to those of the 
prelates and barons, who surrounded 
themselves with household officers, call- 
ed ministerials ; a name equally applied to 
those of a servile and of a liberal descrip- 
tion.! The latter of these were reward- 
ed with grants of lands, which they held 
under a feudal tenure by the condition of 
performing some domestic service to the 

* Women did not inherit fiefs in the German 
empire. Whether they were ever excluded from 
succession iu France, 1 know not ; the genius of a 
military tenure, and the old Teutonic customs, 
preserved in the Salique-lavv, seem adverse to 
their possession of feudal lands ; yet the practice, 
at least from the eleventh century downwards, 
does not support the theory. 

+ Crag., Jus Feudale, 1. i,, tit, 10. Du Cange, 
voc. Feodum de Camera, &c. In the treaty be- 
tween Henry I. of England and Robert, count of 
Flanders, A. D. 1101, the king stipulates to pay 
annually 400 marks of silver, infeodo, for the mili- 
tary service of his ally. — Rymer, Fcpdera, t. i., p. 2. 

% Schmidt, Hist, des AUemands, t. iii., p, 92. 
Du Cange, v. Familia, Ministeriales. 



lord. What was called in our law grand 
sergeantry, affords an instance of this spe- 
cies of fief.* It is, however, an instance 
of the noblest kind ; but Muratori has giv- 
en abundance of proofs, that the common- 
est mechanical arts were carried on in 
the houses of the great, by persons receiv- 
ing lands upon those conditions.! 

These imperfect feuds, however, be- 
long more properly to the history of law. 
and are chiefly noticed in the present 
sketch because they attest the partiality 
manifested during the middle ages to the 
name and form of a feudal tenure. In 
the regular military fief we see the real 
principle of the system, which might 
originally have been defined, an alliance 
of free landholders, arranged in degrees 
of subordination according to their re- 
spective capacities of affording mutual 
support. 

The peculiar and varied attributes of 
feudal tenures naturally gave Feudal law- 
rise to a new jurisprudence, reg- tiook.s. 
ulating territorial rights in those parts of 
Europe which had adopted the system. 
For a length of time this rested in tra- 
ditionary customs, observed in the do- 
mains of each prince or lord, without 
much regard to those of his neighbours. 
Laws were made occasionally by the 
emperor in Germany and Italy, which 
tended to fix the usages of those coun 
tries. About the year 1170, Girard and 
Obertus, two Milanese lawyers, publish- 
ed two books of the law of fiefs, Avhich 
obtained a great authority, and have been 
regarded as the groundwork of that juris- 
prudence.! A number of subsequent 
commentators swelled this code with 
their glosses aird opinions, to enlighten 
or obscure the judgment of the imperial 
tribunals. These were chiefly civilians 
or canonists, who brought to the inter- 
pretation of old barbaric customs the 
principles of a very different school. 
Hence a manifest change was v/rought 
in the law of feudal tenure, which they 
assimilated to the usufruct or the emphy- 
teusis of the Roman code ; modes of 
property somewhat analogous in appear- 



* " This tenure," says Littleton, " is where a 
mail holds his lands or tenements of our sovereign 
lord iV\e king by such services as he ought to do in 
his prop°r person to the king, as to carry the banner 
of the king, or his lance, or to lead his array, or to 
be his marshal, or to carry his sword before him at 
his coronation, or to be his sewer at his corona- 
tion, or his carver, or his butler, or to be one of his 
chamberlains at the receipt of his exchequer, or to 
do other hke services " — Sect. 153. 

t Antiq. Ital., Dissert 11, adfinem. 

+ Giannone, 1st. di Napoli, 1. xiii., c. 3. The 
Libri Feudorum are printed in most editions of the 
Corpus Juris Civilis. 



Part II.] 



FEUDAL SYSTEM. 



83 



ance, but totally distinct in principle 
from the legitimate lief. These Lom- 
bard lawyers propagated a doctrine, which 
has been too readily received, that the 
feudal system originated in their coun- 
try; and some writers upon jurispru- 
dence, such as Duck and Sir James 
Craig, incline to give a preponderating 
authority to their code. But whatever 
weight it may have possessed within the 
limits of the empire, a different guide 
must be followed in the ancient customs 
of France and England.* These were 
fresh from the fountain of that curious 
polity, with which the stream of Roman 
law had never mingled its waters. In 
England we know that the Norman sysr 
tem, established between the conquest 
and the reign of Henry II., was restrain- 
ed by regular legislation, by paramount 
courts of justice, and by learned writings, 
from breaking into discordant local usa- 
ges, except in a comparatively small 
number of places, and has become the 
principal source of our common law. 
But the independence of the French 
nobles produced a much greater variety 
of customs. The whole number collect- 
ed and reduced to certainty in the six- 
teenth century amounted to two hundred 
and eighty-five, or, omitting those incon- 
siderable for extent or peculiarity, to 
sixty. The earliest written customary 
in France is that of Beam, which is said 
to have been confirmed by Viscount Gas- 
ton IV., in lOSS.f Many others were 
written in the two subsequent ages, of 
which the customs of Beauvoisis, com- 
piled by Beaumanoir under Philip III., 
are the most celebrated, and contain a 
mass of information on the feudal consti- 
tution and manners. Under Charles VII., 
an ordinance was made for the formation 
of a general code of customary law, by 

* Giannone explicitly contrasts the French and 
Lombard laws respecting fiefs. The latter were 
■Jie foundation of the Libri Feudorum, and formed 
the common law of Italy. The former were intro- 
duced by Roger Guiscard into his dominions, in 
three books of constitutions, printed in Lindebrog's 
collection. There were several material differen- 
ces, which Giannone enumerates, especially the 
Norman custom of primogeniture. — 1st. di Nap., 
1. xi., c. 5. 

+ There are two editions of this curious old 
code ; one at Pau, in 1552, republished with a fresh 
title-page and permission of Henry IV., in 1602 ; 
the other at Lescars, in 1633. These laws, as we 
read them, are subsequent to a revision made in 
the middle of the sixteenth century, in which they 
were more or less corrected. The basis, however, 
is unquestionably very ancient. We even find the 
composition for homicide preserved in them, so 
that murder was not a capital offence in Beam, 
though robbery was such. — Rubrica de Homicidis, 
Art. xxii. See too Rubrica de Poems, Art. i. and ii. 
F2 



ascertaining for ever in a written collec- 
tion those of each district ; but the work 
was not completed till the reign of Charles 
IX. This was what may be called the 
common law of the fays coutumiers, or 
northern division of France, and the rule 
of all their tribunals, unless Avhere con- 
trolled by royal edicts. 



PART II. 



Analysis of the Feudal System. — Its local extent. 
— View of the different Orders of Society during 
the Feudal Ages.— Nobility — their*Ranks and 
Privileges.— Clergy. — Freemen. — Serfs or Vil- 
leins. — Comparative State of France and Ger- 
many. — Privileges enjoyed by the French Vas- 
sals. — Right of coining Money — and of private 
War. — Immunity from Taxation. — Historical 
View of the Royal Revenue in France. — Meth- 
ods adopted to augment it by depreciation of the 
Coin, &c. — Legislative Power — its state under 
the Merovingian Kings — and Charlemagne. — • 
His Councils. — Suspension of any general Legis- 
lative Authority during the prevalence of Feudal 
Principles. — The King's Council. — Means adopt- 
ed to supply the Want of a National Assembly. 
— Gradual Progress of the King's Legislative 
Power. — Philip IV. assembles the States Gen- 
era). — Their Powers limited to Taxation. — 
States under the Sons of Philip IV. — States of 
1355 and 1356. — They nearly effect an entire 
Revolution. — The Crown recovers its Vigour. — 
States of 1380, under Charles VII.— Subsequent 
Assemblies under Charles VI. and Charles VII, 
— The Crown becomes more and more absolute. 
— Louis XI. — States of Tours in 1484. — Histori- 
cal View of Jurisdiction in France. — Its earli- 
est stage under the first Race of Kings, and 
Charlemagne. — Territorial Jurisdiction. — Feu- 
dal Courts of Justice. — Trial by Combat. — Code 
of St. Louis. — The Territorial Jurisdictions give 
way. — Progress of the Judicial Power of the 
Crown. — Parliament of. — Paris. — Peers of 
France. — Increased Authority of the Parliament. 
— Registration of Edicts. — Causes of the Decline 
of Feudal System. — Acquisitions of Domain by 
the Crown. — Charters of Incorporation granted 
to Towns. — Their previous Condition. — First 
Charters in the twelfth Century. — Privileges 
contained in them. — Military Service of Feudal 
Tenants commuted for Money. — Hired Troops. 
— Change in the Military System of Europe. — 
General View of the Advantages and Disadvan 
tages attending the Feudal System- 

It has been very common to seek for 
the origin of feuds, or, at least, Analogies to 
for analogies to them, in the the feudal ta 
history of various countries. ""'^^• 
But, though it is of great importance to 
trace the similarity of customs in differ- 
ent parts of the world, because it guides 
us to the discovery of general theorems 
as to human society, yet we should be 
on our guard against seeming analogies, 
which vanish away when they are closely 
observed. It is easy to find partial re- 
semblances to the feudal system. The 
relation of patron and client in the Ro- 
man republic is not unlike that of lord 



84 



EUROPE DURING THE MIDDLE AGES. 



[Chap II. 



and vassal, in respect of mutual fidelity ; 
but it was not founded upon the tenure 
of land, nor military service. The veter- 
an soldiers, and, in later times, some bar- 
barian allies of the emperors, received 
lands upon condition of public defence ; 
but they were bound not to an individual 
lord, but to the state. Such a resem- 
blance to fiefs may be found in the Zemin- 
daries of Hindostan, and the Timariots of 
Turkey. The clans of the Highlanders 
and Irish followed their chieftain into the 
field ; but their tie was that of imagined 
kindred and respect for birth, not the 
spontaneous compact of vassalage. Much 
less can we extend the name of feud, 
though it is sometimes strangely misap- 
plied, to the polity of Poland and Russia. 
All the Polish nobles were equal in rights, 
and independent of each other ; all who 
were less than noble were in servitude. 
No government can be more opposite to 
the long gradations and mutual duties of 
the feudal system.* 

The regular machinery and systematic 
Extent of establishment of feuds, in fact, 
the feudal may be considered as almost con- 
system, fined to the dominions of Charle- 
magne, and to those countries which af- 
terward derived it from thence. In Eng- 
land, it can hardly be thought to have ex- 
isted in a complete state before the con- 
quest. Scotland, it is supposed, borrow- 
ed it soon after from her neighbour. The 
Lombards of Benevento had hitroduced 
feudal customs into the Neapolitan prov- 
inces, Avhich the Norman conquerors af- 
terward perfected. Feudal tenures were 
so general in the kingdom of Aragon, that 
I reckon it among the monarchies which 
■were founded upon that basis. f Charle- 

» In civil history many instances might be found 
of feudal ceremonies m countries not regulated by 
the feudal law. Thus Selden has published an in- 
feudation of a vayvod of Moldavia by the King of 
Poland, A. D. 1485, in the regular forms, vol. iii., 
p. 514. But these political fiefs have hardly any 
connexion with the general system, and merely de- 
note the subordination of one prince or people to 
another. 

t It is probable that feudal tenure was as ancient 
in the north of Spain, as in the contiguous prov- 
inces of France. But it seems to have chiefly pre- 
vailed in Aragon about the twelfth and thirteenth 
centuries, when the Moors south of the Ebro were 
subdued by the enterprise of private nobles, who, 
after conquering estates for themselves, did homage 
for them to the king. James I., upon the reduction 
of Valencia, granted lands by way of fief, on con- 
dition of ilefending that kingdom against the Moors, 
and residing personally upon the estate. Many did 
not perform this engagement, and were deprived 
of the lands in consequence. It appears by the tes- 
tament of this monarch, that feudal tenures sub- 
sisted in every part of his dominions. — Martenne, 
Thesaurus Anecdotorum, t. i., p. 1141, 1155. An 
edict of Peter II. in 1210 prohibits the alienation of 



magne's empire, it must be remembered, 
extended as far as the Ebro. But m 
Castile* and Portugal they were very 
rare, and certainly could produce no po- 
litical elfect. Benefices for life were 
sometimes granted in the kingdoms of 
Denmark and Bohemia.f Neither of 
these, however, nor Sweden, nor Hunga- 
ry, comes under the description of coun- 
tries influenced by the feudal system. | 
That system, however, after all these 
limitations, was so extensively diffused, 
that it might produce confusion, as well 
as prolixity, to pursue the collateral 
branches of its history in all the coun- 
tries where it prevailed. But this em- 
barrassment may be avoided without 
any loss, I trust, of important informa- 
tion. The English constitution will find 



emphyteuses without the lord's consent. It is hard 
to say whether regular fiefs are meant by this 
word. — De Marca, Marca Hispanica, p. 1396. This 
author says that there were no arriere-fiefs in Cat- 
alonia. 

The Aragonese fiefs appear however to have dif- 
fered from those of other countries in some re- 
spects. Zurita mentions fiefs according to the cits- 
tom of Italy, which he e.xplains to be such as were 
liable to the usual feudal aids for marrying the 
lord's daughter, and other occasions. We may in- 
fer, therefore, that these prestations were not cus- 
tomary in Aragon. — Anales de Aragon, t. ii., p. 62. 

* What is said of vassalage in Allonzo X.'s code, 
Las siete partidas, is short and obscure : nor am I 
certairi that it meant any thing more than voluntary 
commeyidadon, the custom mentioned in the former 
part of this chapter, from which the vassal might 
depart at pleasure. — See, however, Du Cange, v. 
Honour, where authorities are given for the exist- 
ence of Castilian Refs ; and I have met with occa- 
sional mention of them in history. I believe that 
tenures of this kind were introduced in the four- 
teenth and fifteenth centuries ; but not to any great 
extent. — Marina, Teoria de las Cortes, t. iii., p. 14. 

Tenures of a feudal nature, as I collect from 
Freirii Institut. Juris Lusitani, tome ii., t. 1 and 3, 
existed in Portugal, though the jealousy of the 
crown prevented the system from being establish- 
ed. There were even territorial jurisdictions in 
that kingdom, though not, at least originally, in 
Castile. 

t Danise regni politicus status. — Elzevir, 1629. 
— Stransky, Kespublica Bohemica. — lb. In one 
of the oldest Danish historians, Sweno, I have no- 
ticed this expression: Waldemarus, patris tunc 
potitus feodo. — Langebek, Scrip. Rerum Danic, 
t. i., p. 62. By this he means the dutchy of Sles- 
wic, not a fief, but an honour or government pos- 
sessed by Waldemar. Saxo Grammaticus calls 
it more classically, paterna; prajfecturse dignitas. 
Slesvvic was, in later times, sometimes held as a 
fief ; but this does not in the least imply that lands 
in Denmark proper were feudal, of which I find no 
evidence. 

X Though there were no feudal tenures in Swe- 
den, yet the nobility and others were exempt from 
taxes on condition of serving the king with a horse 
and arms at their own expense ; and a distinction 
was taken between liber and tributarius. But any 
one of the latter might become of the former class, 
or vice versa. — Sueciae Descrtptio. Elzevir, 1631 
p. 92. 



Part II.] 



FEUDAL SYSTEM. 



85 



its place in another portion of this work ; 
and the poHtical condition of Italy, after 
the eleventh century, was not much af- 
fected, except in the kingdom of Naples, 
an inconsiderable object by the laws of 
feudal tenure. I shall confine myself, 
therefore, chiefly to France and Germa- 
ny ; and far more to the former than the 
latter country. But it may be expedient 
first to contemplate the state of society 
in its various classes during the preva- 
lence of feudal principles, before we trace 
their influence upon the national govern- 
ment. 

It has been laid down already as most 
Classes of probable that no proper aristoc- 
society. racy, except that of wealth, was 
Nobility, known under the early kings of 
France ; and it was hinted that hereditary 
benefices, or, in other words, fiefs, might 
supply the link that was wanting between 
personal privileges and those of descent. 
The possessors of beneficiary estates 
were usually the richest and most con- 
spicuous individuals in the estate. They 
were immediately connected with the 
crown, and partakers in the exercise of 
justice and royal counsels. Their sons 
now came to inherit this eminence ; and, 
as fiefs were either inalienable, or at least 
not very frequently alienated, rich fam- 
ilies were kept long in sight ; and, wheth- 
er engaged in public affairs, or living with 
magnificence and hospitality at home, 
naturally drew to themselves popular es- 
timation. The dukes and counts, who 
had changed their quality of governors 
into that of lords over the provinces in- 
trusted to them, were at the head of this 
noble class. And in imitation of them, 
their own vassals, as well as those of the 
crown, and even rich allodialists, assu- 
med titles from their towns or castles, and 
thus arose a number of petty counts, bar- 
ons, and viscounts. This distinct class 
of nobility became coextensive with the 
feudal tenures. For the military tenant, 
however poor, was subject to no tribute, 
no prestation, but service in the field ; he 
was the companion of his lord in the 
sports and feasting of his castle, the peer 
of his court ; he fought on horseback, he 
was clad in the coat of mail, while the 
commonalty, if summoned at all to war, 
came on foot, and with no armour of de- 
fence. As every thing in the habits of 
society conspired with that prejudice, 
which, in spite of moral philosophers, 
will constantly raise the profession of 
arms above all others, it was a natural 
consequence that a new species of aris- 
tocracy, founded upon the mixed consid- 
erations of birth, tenure, and occupation, 



sprang out of the feudal system. Every 
possessor oi a fief was a gentleman, 
though he owned but a few acres of land, 
and furnished his slender contribution 
towards the equipment of a knight. In 
the Libri F'eudorum indeed, those who 
were three degrees removed from the 
emperor in order of tenancy are consid- 
ered as ignoble ;* but t1 is is restrained 
to modern investitures ; and in France, 
where sub-infeudation was carried the 
farthest, no such distinction has met my 
observation.! 

There still, however, wanted something 
to ascertain gentility of blood, where 
it was not marked by the actual tenure 
of land. This was supplied by two in- 
novations devised in the eleventh and 
twelfth centuries : the r 'loption of sur- 
names, and of armoricxl oearings. The 
first are commonly referred to the former 
age, when the nobility began to add the 
names of their estates to their own, or, 
having any way acquired a distinctive ap- 
pellation, transmitted it to their poster- 
ity.! -^s to armorial bearings, there is 
no doubt that emblems somewhat similar 
have been immemorially used both in war 
and peace. The shields of ancient war- 
riors, and devices upon coins or seals, 
bear no distant resemblance to modern 
blazonry. But the general introduction 
of such bearings, as hereditary distinc- 
tions, has been sometimes attributed to 
tournaments, wherein the champions 
were distinguished by fanciful devices ; 
sometimes to the crusades, where a mul- 
titude of all nations and languages stood 
in need of some visible token to denote 
the banners of their respective chiefs. In 
fact, the peculiar symbols of heraldry 
point to both these sources, and have 
been borrowed in part from each.^ He- 
reditary arms were perhaps scarcely used 
by private families before the beginning 
of the thirteenth century. 1| From that 



* L. ii., 1. 10. 

t The nobility of an allodial possession in France 
depended upon its right to territorial jurisdiction. 
Hence there were franc-alnuc nobles, and franc- 
ale-itx roluriers ; the latter of which were subject to 
the jurisdiction of the neighbouring lord. — Loiseau, 
Traite des Seigneuries, p. 76. Denisart, Diction- 
naire des Decisions, art. Franc-aleu. 

X Mabillon, Traite de Diplomatique, 1. ii., c. 7. 
The authors of the Nouveau Traite de Diplomat- 
ique, t. ii., p. 563, trace the use of surnames in a 
few instances even to the beginning of the tenth 
century ; but they did not become general, accord- 
ing to them, till the thirteenth. 

(^ Mem. de I'Acad. des Inscriptions, t. xx., p. 579. 

II I should be unwilling to make a nog.itive as- 
sertion peremptorily in a matter of mere antiqua- 
rian research ; but i am not aware of any decisive 
evidence that hereditary arms were borne in tho 
twelfth century, except by a very few royal or al 



86 



EUROPE DURING THE MIDDLE AGES. 



[Chap, U. 



time, however, they became very general, 
and have contributed to elucidate that 
branch of history, whatever value we 
may assign to it, which regards the de- 
scent of illustrious families. 

When the privileges of birth had thus 
Its privileges ^^^^^ rendered capable of le- 
gitimate proof, they were en- 
hanced in a great degree, and a line 
drawn between the high-born and ignoble 
classes, almost as broad as that which 
separated liberty from servitude. All of- 
fices of trust and power were conferred 
on the former ; those excepted which ap- 
pertain to the legal profession. A ple- 
beian could not possess a fief.* Such at 
least was the original strictness : but as 
the aristocratic principle grew weaker, 
an indulgence was extended to heirs, and 
afterward to purchasers.! They were 

most royal families. — Mabillon, Traite de Diplo- 
matique, 1. ii., c. 18. Those of Geoffrey the Fair, 
count of Anjou, who died in 1150, are extant on 
his shield : azure, four lions rampant or. — Hist. 
Litteraire de la France, t. ix., p. 165. If arms had 
been considered as hereditary at that time, this 
should be the bearing of England, which, as we all 
know, differs considerably. Louis VII. sprinkled 
his seal and coin with (leurs-de-lys, a very ancient 
device, or rather ornament ; and the same as what 
are sometimes called bees. The golden ornaments 
found in the tomb of Childeric I. at Tournay, which 
may be seen in the library of Paris, may pass either 
for fleurs-de-lys or bees. Charles V. reduced the 
number to three, and thus fixed the arms of France. 
The counts of Toulouse used the cross in the 
twelfth age ; but no other arms, Vaissette tells us, 
can be traced in Languedoc so far back, t. iii., p. 
514. 

Armorial bearings were in use among the Sara- 
cens during the later crusades ; as appears by a 
passage in Joinville, t. i., p. 88 (Collect, des Me- 
moires), and Du Gauge's note upon it. Perhaps, 
however, they may have been adopted in imitation 
of the Franks, like the ceremonies of knighthood. 
"Villaret ingeniously conjectures, that the separa- 
tion of different branches of the same family by 
their settlements in Palestine led to the use of he- 
reditary arms, in order to preserve the connexion, 
t. xi., p. 113. 

M. Sismondi, I observe, seems to entertain no 
doubt that the noble families of Pisa, including that 
whose name he bears, had their armorial distinc- 
tions in the beginning of the twelfth century. — Hist, 
des Republ. Ital., t. 1, p. 373. It is at least proba- 
ble that the heraldic devices were as ancient in 
Italy as in any part of Europe. And the authors 
of Nouveau Traite de Diplomatique, t. iv., p. 388, 
incline to refer hereditary arms even in France to 
the beginning of the twelfth century, though with- 
out producing any evidence for this. 

* We have no English word that conveys the 
lull sense of roturier. How glorious is this deficien- 
cy in our political language, and how different are 
the ideas suggested by commoner/ Roturier, ac- 
cording to Du Gauge, is derived from rupturarius, 
a peasant, ab agrum rumpendo. 

+ The EstabUshments of St. Louis forbid this 
innovation, but Beaumanoir contends that the pro- 
hibition does not extend to descent or marriage, c. 
48. The roturier who acquired a fief, if he chal- 



even permitted to become noble by tlie 
acquisition, or at least by its possession 
for three generations.* But notwith- 
standing this ennobling quality of the 
land, which seems rather of an equivocal 
description, it became an established right 
of the crown to take, every twenty years, 
and on every change of the vassal, a fine 
known by the name of franc-fief, from 
plebeians in possession of land held by a 
noble tenure. t A gentleman in France 
or Germany could not exercise any trade 
without derogating, that is, losing the ad- 
vantages of his rank. A few exceptions 
were made, at least in the former coun- 
try, in favour of some hberal arts, and 
of foreign commerce. J But in nothing 
does the feudal haughtiness of birth more 
show itself, than in the disgrace which 
attended unequal marriages. No chil- 
dren could inherit a territory held imme- 
diately of the empire, unless both their 
parents belonged to the higher class of 
nobility. In France, the off'spring of a 
gentleman by a plebeian mother were 
reputed noble for the purposes of inherit- 
ance, and of exemption from tribute.^ 
But they could not be received into any 
order of chivalry, though capable of sim- 
ple knighthood ; nor were they consider- 
ed as any better than a bastard class, 
deeply tainted with the alloy of their 



lenged any one, fought with ignoble arms ; but in 
all other respects was treated as a gentleman, ibid. 
Yet a knight was not obliged to do homage to the 
roturier, who became his superior by the acquisi- 
tion of a fief on which he depended. — Carpentier, 
Supplement, ad Du Cange, voc. Homagium. 

* Etablissemens de St. Louis, c. 143, and note, 
in Ordonnances des Rois, t. i. See also preface 
to the same volume, p. xii. According to Mably, 
the po.ssession of a fief did not cease to confer no- 
bility (analogous to our barony by tenure) till the 
Ordonnance de Blois, in 1579. — Observations sur 
I'Hist. de France, 1. iii., c. 1, note 6. But Lauriere, 
author of the preface above cited, refers to Bouteil- 
ler, a writer of the fourteenth century, to prove 
that no one could become noble without the king's 
authority. The contradiction will not much per- 
plex us, when we reflect on the disposition of law- 
yers to ascribe all prerogatives to the crown, at the 
expense of territorial proprietors, and of ancient 
customary law. 

t The right, originally perhaps usurpation, call- 
ed franc-fief, began under Philip the Fair. — Ordon- 
nances des Rois, t. i., p. 324. Demsart, Art. Franc- 
fief 

t Houard, Diet, du Droit Normand. EncycIop6- 
die. Art. Noblesse. Argon, 1. ii., c. 2. 

() Nobility, to a certain degree, was communica- 
ted tlirough the mother alone, not only by the cus- 
tom of Champagne, but in all parts of France ; that 
is, the issue were " gentilhomrnes du fail de leur 
corps," and could possess fiefs ; but, says Beauman- 
oir, " la gentillesse par laquelle on deviant chevalier, 
doit venir de par le pere," c. 45. There was a pro- 
verbial maxim in the French law, rather emphatic 
than decent, to express the derivation of gentility 
from the father, and of freedom from the mother. 



Part II.] 



FEUDAL SYSTEM. 



87 



maternal extraction. Many instances oc- 
cur where letters of nobility have been 
granted to reinstate them in their rank.* 
For several purposes it was necessary to 
prove four, eight, sixteen, or a greater 
number of quarters, that is, of coats borne 
by paternal and maternal ancestors, and 
the same practice still subsists in Ger- 
many. 

It appears, therefore, that the original 
nobility of the continent were what we 
may call self-created, and did not derive 
their rank from any such concessions of 
their respective sovereigns as have been 
necessary in subsequent ages. In Eng- 
land, the baronies by tenure might belong 
to the same class, if the lands upon which 
they depended had not been granted by 
the crown. But the kings of France, be- 
fore the end of the thirteenth century, 
began to assume a privilege of creating 
nobles by their own authority, and with- 
out regard to the tenure of land. Philip 
the Hardy, in 1271, was the first French 
king who granted letters of nobility ; 
under the reigns of Philip the Fair and 
his children they gradually became fre- 
quent. f This effected a change in the 
character of the nobiUty ; and had as ob- 
vious a moral, as other events of the same 
age had a political influence, in diminish- 
ing the power and independence of the 
territorial aristocracy. The privileges 
originally connected with ancient lineage 
and extensive domains became common 
to the low-born creatures of a court, and 
lost consequently part of their title to 
respect. The lawyers, as I have observed 
above, pretended that nobility could not 
exist without a royal concession. They 
acquired themselves, in return for their 
exaltation of prerogative, an official no- 
bility by the exercise of magistracy. The 
institutions of chivalry again gave rise to 
a vast increase of gentlemen; knighthood, 
on whomsoever conferred by the sover- 
eign, being a sufficient passport to noble 
privileges. It was usual, perhaps, to 
grant previous letters of nobility to a ple- 
beian for whom the honour of knighthood 
was designed. 

In this noble or gentle class there were 
Different or- several gradations. All those in 
ders of nobii- France who held lands imme- 
"^' diately depending upon the 

crown, whatever titles they might bear, 
were comprised in the order of barons. 
These were, originally, the peers of the 



* Beaiimaaoir, c. 45. Du Cange, Dissert. 10, 
sur Joinville. Carpentier, voc. Nobilitalio. 

t V'elly, t. vi., p. 432. Du Cange ami Carpen- 
tier, voce Nobihtaire, &c. Boulainvilliers, Hist. 
de Vamien Gouvernement de France, t. i., p. 317 



king's court ; they possessed tJie higher 
territorial jurisdiction, and had the right 
of carrying their own banner into the 
field.* To these corresponded the Val- 
vassores majores and Capitanei of the 
empire. In a subordinate class were 
the vassals of this high nobility, who, 
upon the continent, were usually termed 
Vavassors ; an appellation not unknown, 
though rare, in England. f The Chate- 
lains belonged to the order of Vavassors, 
as they held only arriere fiefs : but hav- 
ing fortified houses, from which they de- 
rived their name (a distinction very im- 
portant in those times), and possessing 
ampler rights of territorial justice, they 
rose above the level of their fellows in 
the scale of tenure.J But after the per 
sonal nobility of chivalry became the ob 
ject of pride, the Vavassors, who obtain 
ed knighthood, were commonly styled 
bachelors ; those who had not received 
that honour fell into the class of squires,^ 
or damoiseaux. 

* Beaumanoir, c. 34. Du Cange, v. Baro. Etab- 
lissemens de St. Louis, 1. i., c. 24 ; 1. ii., c. .36. 
The vassals of inferior lords were however called, 
iiiipropevly, barons, both in France and England. 
— Recueil des Historiens, t. xi., p. 300. Madox, 
Baronia Anglica, p. 133. In perfect strictness, 
those only whose immediate tenure of the crown 
was older than the accession of Hugh Capet, were 
barons of France ; namely, Bourbon, Coucy, and 
Beaujeu, or Beaajolois. It appears, however, by 
a register in the reign of Philip Augustus, that fif- 
ty-nine were reckoned in that class ; the feudato- 
ries of the Capetian fiefs, Paris and Orleans, being 
confounded with the original vassals of the crown. 
—Da Cange, voc. Baro. 

t Du Cange, v. Vavassor. Velly, t. vi., p. 15L 
Madox, Baronia Anglica, p. 135. There is, per- 
haps, hardly any word more loosely used than Va- 
vassor. Bracton says. Sunt etiam Vavassores, 
magnae dignitatis viri. In France and Germany 
they are sometimes named with much less honour. 
Je suis un chevalier ne de cest part, de vavasseurs 
et de basse gent, says a romance. This is to be ex- 
plained by the poverty to which the subdivision of 
fiefs reduced idle gentlemen. 

t Du Cange, v. Castellanus. Coutumes de Poi- 
tou, tit. iii. Loiseau, Trait^ des Seigneuries, p. 160. 
Whoever had a right to a castle had la haute jus- 
tice ; this being so incident to the castle, that it 
was transferred along with it. There might, how- 
ever, be a Seigneur haut-justicier below the Chate- 
lain ; and a ridiculous distinction was made as to 
the number of posts by which their gallows might 
be supported. A baron's instrument of execution 
stood on four posts ; a chiitelain's on three ; while 
the inferior lord, who happened to possess la haute 
justice, was forced to hang his subjects on a two- 
legged machine. — Coutumes de Poitou. Du Cange, 
V. Furca. 

Laun^re quotes from an old manuscript the fol- 
lowing short scale of ranks. Due est la premiere 
dignite, puis comtes, puis viscomtes, et puis baron, 
et puis chatelain, et puis vavasseur, et puis citaen, 
et puis villain. — Ordonnances des Rois, t. i., p. 277. 

6 The sons of knights, and gentlemen not yet 
knighted, took the appellation of squires in the 
twelfth century.— Vaissotte, Hist, de Lang., t. ii., 



88 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



It will be needless to dwell upon the 

condition of the inferior clergy, whether 

secular or professed, as it bears 

"^^" little upon the general scheme of 
polity. The j)rclates and abbots, how- 
ever, it must be understood, were com- 
pletely feudal nobles. They swore feal- 
ty for their lands to the king or other su- 
perior, received the homage of their vas- 
sals, enjoyed the same immunities, exer- 
cised the same jurisdiction, maintained 
the same authority, as the lay lords 
among whom they dwelt. Military ser- 
vice does not appear to have been re- 
served in the beneficiary grants made to 
cathedrals and monasteries. But, when 
other vassals of the crown were called 
upon to repay the bounty of their sover- 
eign by personal attendance in Avar, the 
ecclesiastical tenants were supposed to 
fall within the scope of this feudal duty, 
which men, little less uneducated and vi- 
olent than their compatriots, were not 
reluctant to fulfil. Charlemagne ex- 
empted or rather prohibited them from 
personal service by several capitularies.* 
The practice, however, as every one who 
has some knowledge of history will be 
aware, prevailed in succeeding ages. 
Both in national and private warfare, we 
find very frequent mention of martial 
prelates.! But, contrary as this actual 
service might be to the civil, as well as 
ecclesiastical laws, the clergy who held 
military fiefs were of course bound to 
fulfil the chief obligation of that tenure, 
and send their vassals into the field. We 
have many instances of their accompa- 
nying the army, though not mixing in 
the conflict; and even the parish priests 

p. 513. That of Damoiseau came into use in the 
thirteenth. — Id., t. iii., p. 529. The latter was, I 
think, more usual in France. Du Cange gives Ut- 
ile information as to the word squire. (Scutifer.) 
" Apud Anglos," he says, " penultima est nobilitatis 
descriptio, inter Equitem et Generosum. Quod et 
alibi m usu fuit." Squire was not used as a title 
of distinction in England till the reign of Edward 
III., and then but sparingly. Though by Henry 
VI.'s time it was grown more common, yet none 
assumed it but the sons and heirs of knights, and 
some military men ; except officers in courts of 
justice, who, by patent or prescription, had obtain- 
ed that addition. — Spelman's Posthumous Works, 
p. 234. 

* Mably, 1. i., c. 5. Baluze, t. i., p. 410, 932, 987. 
Any bishop, priest, deacon, or subdeacon bearing 
arms was to be degraded, and not even admitted to 
lay communion. — Id., p. 932. 

t One of the latest instances probably of a fight- 
ing bishop is Jean Montaigu, archbishop of Sens, 
who was killed at Azincourt. Monstrelet says, 
that he was " non pas en estat pontifical, car au 
lieu de mitre il portoit une bacinet, pour dalma- 
tique portoit un haubcrgeon, pour chasuble la 
piece d'acier ; et au lieu de crosse, portoit unc 
bache," fol. 132. 



headed the militia of their villages.* The 
prelates however sometimes contrived to 
avoid this military service, and the pay- 
ments introduced in comnmtation for it, 
by holding lands in frank-aimoigne, a te- 
nure which exempted them from every 
species of obligation, except that of say- 
ing masses for the benefit of the grant- 
or's family. t But, notwithstanding the 
warlike disposition of some ecclesiastics, 
their more usual inability to protect the 
estates of their churches against rapa- 
cious neighbours suggested a new spe- 
cies of feudal relation and tenure. The 
rich abbeys elected an advocate, whose 
business it was to defend their interests 
both in secular courts, and, if necessary, 
in the field. Pepin and Charlemagne 
are styled Advocates of the Roman 
church. This indeed was on a magnifi- 
cent scale : but in ordinaiy practice, the 
advocate of a monastery was some neigh- 
bouring lord, who, in return for his pro- 
tection, possessed many lucrative privi- 
leges, and, very frequently, considerable 
estates by way of fief from his ecclesias- 
tical clients. Some of these advocates 
are reproached with violating their obli- 
gation, and becoming the plunderers of 
those whom they had been retained to 
defend. I 

The classes below the gentry may be 
divided into freemen and villeins. Of 
the first were the inhabitants of char- 
tered towns, the citizens and burghers, 
of whom more will be said presently. 
As to those who dwelt in the country, 
we can have no difficulty in recognising, 
so far as England is concerned, the socca- 
gers, whose tenure was free, though not 
so noble as knight's service, and a nu- 
merous body of tenants for term of life, 
who formed that ancient basis of our 
strength, the English yeomanry. But 
the mere freemen are not at first sight 
so distinguishable in other countries. In 
French records and law-books of feudal 
times, all besides the gentry are usually 
confounded under the names of villeins 
or hommes de pooste (gens potestatis).^ 



* Daniel, Hist, de la Milice Frangoise, t. i., 
p. 88. 

t Du Cange, Eleemosyna Libera. Madox, Ba- 
ronia Angl., p. 115. Coke on Littleton, and other 
English law-books. 

t Du Cange, v. Advocatus ; a full and useful 
article. Recueil des Historiens, t. xi., preface, 
p. 184. 

(} Homo potestatis, non nobilis— Ita nuncupan- 
tur, quod in potestate domini sunt— Opponuntur 
viris nobilibus ; apud Butilerium Consuetudinarii 
vocantur, Constumiers, prestationibus scilicet ob- 
no-xii et operis. — Du Cange, v. Potestas. As all 
these freemen were obliged, by the ancient laws 
of France, to live under the protection of some par- 



Part II.] 



FEUDAL SYSTEM. 



89 



This proves the slight estimation in 
which all persons of ignoble birth were 
considered. For undoubtedly there ex- 
isted a great many proprietors of land 
and others, as free, though not as privi- 
leged, as the nobility. In the south of 
France, and especially Provence, the 
number of freemen is remarked to have 
been greater than in the parts on the 
right bank of the Loire, where the feudal 
tenures were almost universal.* I shall 
quote part of a passage in Beaumanoir, 
which points out this distinction of ranks 
pretty fully. " It should be known," he 
says,t " that there are three conditions 
of men in this world ; the first is that of 
gentlemen; and the second is that of 
such as are naturally free, being born of 
a free mother. All who have a right to 
be called gentlemen are free, but all who 
are free are not gentlemen. Gentility 
comes by the father, and not by the 
mother ; but freedom is derived from the 
mother only ; and whoever is born of a 
free mother is himself free, and has free 
power to do any thing that is lawful." 

In every age and country, until times 
Serfs or Comparatively recent, personal ser- 
viiieiiis. vitude appears to have been the 
lot of a large, perhaps the greater portion, 
of mankind. We lose a good deal of our 
sympathy with the spirit of freedom in 
Greece and Rome, when the importunate 
recollection occurs to us of the tasks 
which might be enjoined, and the punish- 
ments which might be inflicted, without 
control either of law or opinion, by the 
keenest patriot of the Comitia, or the 
Council of Five Thousand. A similar, 
though less powerful, feeling will often 
force itself on the mind, when we read 
the history of the middle ages. The 
Germans, in their primitive settlements, 
were accustomed to the notion of sla- 
very, incurred not only by captivity, but 
by crimes, by debt, and especially by 
loss in gaming. When they invaded the 
Roman empire, they found the same con- 
dition established in all its provinces. 
Hence, from the beginning of the era 
now under review, servitude, under some- 
what different modes, was extremely 
common. There is some difficulty in 
ascertaining its varieties and stages. In 
the Salique laws, and in the Capitularies, 
we read not only of Servi, but of Tribu- 

ticular lord, and found great difficulty in choosing 
a new place of residence, as they were subject to 
many tributes and oppressive claims on the part of 
their territorial superiors, we cannot be surprised 
that they are confounded, at this distance, with 
men in actual servitude. 

* Heeren, Essai sur les Croisades, p. 122. 

t Coiitumes de Beauvoisis, c. 45, p. 256. 



tarii, Lidi, and Coloni, who were cultiva- 
tors of the earth, and subject to residence 
upon their master's estate, though not 
destitute of property or civil rights.* 
Those who appertained to the demesne 
lands of the crown were called Fiscalini. 
The composition for the murder of one 
of these was much less than that for a 
freeman. t The number of these servile 
cultivators was undoubtedly great, yet 
in those early times, I should conceive, 
much less than it afterward became. 
Property was for the most part in small 
divisions, and a Frank who could hardly 
support his family upon a petty allodial 
patrimony, was not likely to encumber 
himself with many servants. But the ac- 
cumulation of overgrown private wealth 
had a natural tendency to make slavery 
more frequent. Where the small propri- 
etors lost their lands by mere rapine, we 
may believe that their liberty was hard- 
ly less endangered. J Even where this 
was not the case, yet, as the labour 
either of artisans or of free husbandmen 
was but sparingly in demand, they were 
often compelled to exchange their liber- 
ty for bread. 1^ In seasons also of fam- 
ine, and they were not unfrequent, many 
freemen sold themselves to slavery. A 
capitulary of Charles the Bald, in 8G4, 
permits their redemption at an equitable 
price. II Others became slaves, as more 



* These passages are too numerous for refer- 
ence. Ill a very early charter in Martenne's The- 
saurus Anecdotorum, t. i., p. 20, lands are granted, 
cum hominibus ibidem pennanentibus, quoscolmia- 
rio ordine vivere constituimus. Men of this class 
were called in Italy Aldiones. A Lombard capitu- 
lary of Charlemagne says : Aldiones ea lege vi- 
vunt in Italia sub servitute dominorum. suorum, 
qua Fiscalini, vel Lidi vivunt in Francia.— Mura- 
tori. Dissert. 14. 

t Originally it was but 45 solidi. — Leges Sali- 
cae, c. 43; but Charlemagne raised it to 100. — Ba- 
luzii Capitularia, p. 402. There are several pro- 
visions in the laws of this great and wise monarch 
in favour of liberty. If a lord claimed any one ei- 
ther as his villein or slave (colonus sive'servus), 
who had escaped beyond his territory, he was not 
to be given up till strict inquiry had been made in 
the place to which he was asserted to belong, as to 
his condition and that of his family, p. 400. And 
if the villein showed a charter of enfranchisement, 
the proof of its forgery was to lie upon the lord. 
No man's liberty could be questioned in the Hun- 
dred-court. 

X Montesquieu ascribes the increase of personal 
servitude in France to the continual revolts and 
commotions under the two first dynasties, 1. xxx., 
c. 11. 

{) Du Cange, v. Obnoxatio. 

II Baluzii Capitularia. The Greek traders pup 
chased famished wretches on the coasts of Italy, 
whom they sold to the Saracens.— Muratori, An- 
nali d'ltalia. A. D. 785. Much more would per- 
sons in this extremity sell themselves to neighbour 
ing lords. 



90 



EUROPE DURING THE MIDDLE AGES. 



fCHAP. 11. 



fortunate men became vassals, to a pow- 
erful lord, for the sake of his protection. 
Many were reduced into this state through 
inability to pay those pecuniary composi- 
tions for offences, which were numerous, 
and sometimes heavy, in the barbarian 
codes of law ; and many more by neg- 
lect of attendance on military expedi- 
tions of the king, the penalty of which 
was a fine called Heribann, with the al- 
ternative of perpetual servitude.* A 
source of loss of liberty which may 
strike us as more extraordinary was su- 
perstition ; men were infatuated enough 
to surrender themselves, as well as their 
properties, to churches and monasteries, 
in return for such benefits as tliey might 
reap by the prayers of their new mas- 
ters.! 

The characteristic distinction of a vil- 
lein was his obligation to remain upon 
his lord's estate. He was not only pre- 
cluded from selling the lands upon which 
he dwelt, but his person was bound, and 
the lord might reclaim him at any time, 
by suit in a court of justice, if he ventur- 
ed to stray. But, equally liable to this 
confinement, there were two classes of 
villeins, whose condition was exceeding- 
ly diflferent. In England, at least from 
the reign of Henry II., one only, and 
that the inferior species, existed ; incapa- 
ble of property, and destitute of redress, 
except against the most outrageous in- 
juries. J The lord could seize whatever 
they acquired or inherited, or convey 
them, apart from the land, to a stranger. 
Their tenure bound them to what were 
called villein services, ignoble in their 
nature, and indeterminate in their de- 
gree ; the felling of timber, the carrying 
of manure, the repairing of roads for their 
lord, who seems to have possessed an 
equally unbounded right over their la- 
bour and its fruits. But by the customs 
of France and Germany, persons in this 
abject state seem to have been called 
serfs, and distinguished from villeins, 
who were only bound to fixed payments 
and duties in respect of their lord, though, 
as it seems, without any legal redress, 
if injured by him.^ " The third estate of 



* Du Cange, Heribannum. A full heribannum 
was 60 solidi ; but it was sometimes assessed in 
proportion to the wealth of the party. 

t Beaumanoir, c. 45. 

t Littleton, 1. ii., c. 11. Non potest aliquis 
(says Glanvil), in villenagio positus, libertatem 
suam propriis denariis suis quserere — quia omnia 
catalla cujuslibet nativi intelliguntur esse in potes- 
tate domini sui, 1. v., c. 5. 

^ This is clearly expressed in a French law- 
book of the thirteenth century, the Conseil of 
Pierre des Fontaines, quoted by Du Cange, voc. 



men," says Beaumanoir, in the passage 
above quoted, "is that of such as are not 
free ; and these are not all of one condi- 
tion, for some are so subject to their 
lord that he may take all they have, 
alive or dead, and imprison him whenev- 
er he pleases, being accountable to none 
but God ; while others are treated more 
gently, from whom the lord can take 
nothing but customary payments, though 
at their death all they have esclieats to 
him."* 

Under every denomination of servitude, 
the children followed their mother's con- 
dition ; except in England, where the 
father's state determined that of the chil- 
dren ; on which account, bastards of fe- 
male villeins were born free ; the law 
presuming the liberty of their father.f 
The proportion of freemen, therefore, 
would have been miserably diminished, 
if there had been no reflux of the tide 
which ran so strongly towards slavery. 
But the usage of manumission made a 
sort of circulation between these two 



Villanus. Et sache bien que selon Dieu tu n'aa 
mie pleniere poeste sur ton vilain. Dont se tu 
prens du sien fors les droites redevances, que te 
doit, tu les prens contre Dieu, et sur le peril de 
fame et come robierres. Et ce qu'on dit toutes 
les choses que vilains a, sont an Seigneur, c'est 
voirs a garder. Car s'il estoient son seigneur pro- 
pre, il n'avoit nule difference entre serf et vilain, 
mais par notre usage n'a entre toi et ton vilain juge 
fors Dieu, tant com il est tes couchans et tes le- 
vans, s'll n'a autre loi vers toi fors la commune. 
This seems to render the distinction little more 
than theoretical. 

* Beaumanoir, c. 45. Du Cange, Villanus, Ser- 
vus, and several other articles. Schmidt, Hist, 
des AUemands, t. ii., p. 171, 435. By a law of the 
Lombards, a free woman who married a slave 
might be killed by her relations, or sold ; if they 
neglected to do so, the fisc might claim her as its 
own. — Muratori, Dissert. 14. In France also, she 
was liable to be treated as a slave. — Marculfi For- 
mulae, I. ii., 29. Even in the twelfth century, it 
was the law of Flanders, that whoever married a 
villein became one himself, after he had lived with 
her a twelvemonth. — Recueil des Historiens, t. 
xiii., p. 350. And, by a capitulary of Pepin, if a 
man married a viUein believing her to be free, he 
might repudiate her and marry another.— Baluze, 
p. 181. 

Villeins themselves could not marry without 
the lord's license, under penalty of forfeiting 
their goods, or at least of a mulct. — Du Cange, v, 
Forismaritagium. This seems to be the true origin 
of the famous mercheta mulierum, whicn nas beea 
ascribed to a very different custom. — Du Cange, v. 
Mercheta Mulierum. Dalrymple's Annals of Scot- 
land, vol. i., p. 312. Archa^ologia, vol. xii., p. 31. 

t Littleton, s. 188. Bracton indeed holiis, that 
the spurious issue of a neif, though by a free fa- 
ther, should be a villein, quia sequitur conditionem 
matris, quasi vulgo conceptus, 1. i., c. 6. But the 
laws of Henry I. declare that a son should follow 
his father's condition ; so that this peculiarity is 
very ancient in our law. — Leges Hen. I., c. 75 
and 77. 



Part II.] 



FEUDAL SYSTEM. 



91 



erai states of mankind. This, as is 
abouiioa of well knowH, was an exceeding- 
viiiaiiage. jy common practice with the 
Romans ; and is mentioned, with certain 
ceremonies prescribed, in the Prankish 
and other early laws. The clergy, and 
especially several popes, enforced it as a 
duty upon laymen ; and inveighed agamst 
the scandal of keeping Christians m bond- 
age.* But they were not, it is said, equal- 
ly ready in performing their own parts ; 
the villeins upon church lands were 
among the last who were emancipated.! 
As society advanced in Europe, the man- 
umission of slaves grew more frequent.J 
By the indulgence of custom in some 
places, or perhaps by original convention, 
villeins might possess property, and thus 
purchase their own redemption. Even 
where they had no legal title to property, 
it was accounted inhuman to divest them 
of their little possession (the pecuhum of 
Roman law) ; nor was their poverty, per- 
haps, less tolerable, upon the whole, than 
that of the modern peasantry in most 
countries of Europe. It was only in re- 
spect of his lord, it must be remembered, 
that the villein, at least in England, was 
without rights;^ he might inherit, pur- 
chase, sue in the courts of law ; though. 



* Enfranchisements by testament are very com- 
mon. Thus, in the will of Seniofred.count of Bar- 
celona, in 966, we find the followmg piece of cor- 
rupt Latin : de ipsos servos meos et anciUas, illi 
qui trajditi fuerunt facialis illos liberos propter re- 
medium anim» meas ; et alii qui fuerunt de paren- 
toruin meorum remaneant ad fratresmeos.— Marca 
Hispanica, p. 887. 

t Schmidt, Hist, des All., t.i., p. 361. See, how- 
ever, a charter of manumission from the chapter 
of Orleans, in 1224, to all their slaves, under certain 
conditions of service.— Martenne, Thesaurus Anec- 
dot., t. i., p. 914. Conditional manumissions were 
exceedingly common.— Du Cange, v. Manumis- 
sio ; a long article. 

X No one could enfranchise his villem without 
the superior lord's consent ; for this was to dimin- 
ish the value of his land apeticer le fief.— Beauma- 
noir, c. 15. Etabhssemens de St. Loius, c. 34. 
It was necessary, therefore, for the villein to obtain 
the suzerain's confirmation; otherwise he only 
changed masters and escheated, as it were, to the 
superior ; for the lord who had granted the charter 
of franchise was estopped from claiming him agam. 
() Littleton, s. 189. Perhaps this is not applica- 
ble to other countries. ViUems were incapable of 
being received as witnesses against freemen. — Re- 
cueil des Historiens, t. xiv., preface, p. 65. There 
are some charters of kings of France admitting 
the serfs of particular monasteries to give evidence, 
or to engage in the judicial combat, against free- 
men.— Ordonnances des Rois, t. i., p. 3. But I do 
not know that their testimony, except against their 
lord, was ever refused in England ; their state of 
•ervituda not being absolute, like that of negroes 
In the West Indies, but particular and relative, as 
that of an apprentice or hired servant. This sub- 
ject, however, is not devoid of obscurity, and I may 
probably return to it in another place. 



as defendant in a real action, or suit 
wherein land was claimed, he might 
shelter himself under the plea of villan^ 
age. The peasants of this condition 
were sometimes made use of in war, and 
rewarded with enfranchisement ; espe- 
cially in Italy, where the cities and petty 
states had often occasion to defend them- 
selves with their own population ; and in 
peace the industry of free labourers must 
have been found more productive and 
better directed. Hence the eleventh and 
twelfth centuries saw the number of 
slaves in Italy begin to decrease ; early in 
the fifteenth, a writer quoted by Murato- 
ri speaks of them as no longer existing.* 
The greater part of the peasants in some 
countries of Germany had acquired their 
liberty before the end of the thirteenth 
century ; in other parts, as well as in all 
the northern and eastern regions of Eu- 
rope, they remained in a sort of villan- 
age till the pi^sent age. Some very few 
instances of predial servitude have been 
discovered in England, so late as the 
time of Elizabeth,! and perhaps they 
might be traced still lower. Louis Hutin, 
in°France, after innumerable particular 
instances of manumission had taken 
place, by a general edict in 1315, reci- 
ting that his kingdom is denominated the 
kingdom of the Franks, that he would 
have the fact to correspond with the 
name, emancipates all persons in the 
royal domains upon paying a just com- 
position, as an example for other lords 
possessing villeins to follow.J Philip 
the Long renewed the same edict three 
years afterward ; a proof that it had not 
been carried into execution.^ Indeed, 
there are letters of the former prince, 
wherein, considering that many of his 
subjects are not apprized of the extent 
of the benefit conferred upon them, he 
directs his officers to tax them as high 
as their fortunes can well bear.jl 



* Dissert. 14. 

t Barrington's Observations on the ancient Stat- 
utes, p. 274. 

X Ordonnances des Rois, t. i., p. 583. 

I Id., p. C53. 

II Velly, t. viii., p. 38. Philip the Fair had eman- 
cipated the villeins in the royal domains throughout 
Languedoc, retaining only an annual rent for their 
lands, which thus became censives, or emphyteuses. 
It does not appear by the charter that he sold this 
enfranchisement, though there can be little doubt 
about it. He permitted his vassals to follow the 
example.— Vaissette, Hist, de Languedoc, t. iv. 
Appendix, p. 3 and 12. 

It is not generally known, I think, that predial 
servitude was not abolished in all parts of France 
till the revolution. In some places, says Pasquier, 
the peasants are taillables 4 volonte, that is, their 
contribution is not permanent, but assessed by the 
lord with the advice of prud' hommes, resseauta 



93 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



It is deserving of notice that a distinc- 
tion existed from very early times in the 
nature of lands, collateral, as it were, 
to that of persons. Thus we find mansi 
ingenui and mansi serviles in the oldest 
charters, corresponding to the bocland 
and folkland of the Anglo-Saxons, the 
liberum tenementum and villenagium, or 
freehold and copyhold, of our later law. 
In France, all lands held in roture appear 
to be considered as villein tenements, and 
are so termed in Latin, though many of 
them rather answer to our soccage free- 
holds. But, although originally this ser- 
vile quality of lands was founded on the 
state of their occupiers, yet there was 
this particularity, that lands never chan- 
ged their character along with that of the 
possessor ; so that a nobleman might, and 
often did, hold estates in roture, as well 
as a roturier acquire a fief. Thus in 
England the terre tenants in villanage, 
who occur in our old books, were not 
villeins, but freemen holding lands which 
had been from time immemorial of a vil- 
lein quality. 

At the final separation of the French 

rnmnira f^om thc Gcrmau side of Char- 

tivestateof lemagne's empire by the treaty 

German*"*^ of Verdun, in 843, there was 

ermany. pgj.jjj^pg j^aj-fiiy any difference 

in the constitution of the two kingdoms. 
If any might be conjectured to have ex- 
isted, it would be a greater independence, 
and fuller rights of election in the nobil- 
ity and people of Germany. But in the 
lapse of another century, France had lost 
all her political unity, and her kings all 
their authority ; Avhile the Germanic em- 
pire was entirely unbroken, under an 
effectual, though not absolute, control 
of its sovereign. No comparison can be 
made between the power of Charles the 
Simple and Conrad the First, though the 
former had the shadow of an hereditary 

sur les lieux, according to the peasant's ability. 
Others pay a fixed sum. Some are called serfs de 
poursuite, who cannot leave their habitations, but 
may be followed by the lord into any part of France 
for the taille upon their goods. This was the case 
in part of Champagne, and the Nivernois. Nor 
could these serfs, or gens de mainmorte, as they 
were sometimes called, be manumitted without 
letters patent of the king, purchased by a fine. — 
Recherches de la France, 1. iv., c. 5. Du Bos in- 
forms us that, in 1651, the Tiers Etat prayed the 
king to cause all serfs (hommes de poote) to be en- 
franchised on paying a composition ; but this was 
not complied with, and they existed in many parts 
when he wrote. — Histoire Critique, t. iii,, p. 298. 
Argou, in his Institutions du Droit Francois, con- 
firms this, and refers to the ciistoinaries of Niver- 
nois and Vitry, 1. i., c. 1. And M. de Hrequigny, 
in his preface to the twelfth volume of the collec- 
tion of OrdonnanCifts, p. 22, says, that throughout 
almost the whole jurisdiction of the parliament of 



right, and the latter was chosen from 
among his equals. A long succession of 
feeble princes or usurpers, and destruc- 
tive incursions of the Normans, reduced 
France almost to a dissolution of society ; 
while Germany, under Conrad, Henry, 
and the Othos, found their arms not less 
prompt and successful against revolted 
vassals than external enemies. The 
high dignities were less completely he- 
reditary than they had become in France ; 
they were granted, indeed, pretty regu- 
larly, but they were solicited as well as 
granted ; while the chief vassals of the 
French crown assumed them as patrimo- 
nial sovereignties, to which a royal in- 
vestiture gave more of ornament than 
sanction. 

In the eleventh century, these imperial 
prerogatives began to lose part of their 
lustre. The long struggles of the princes 
and clergy against Henry IV. and his son, 
the revival of more effective rights of 
election on the extinction of the house 
of Franconia, the exhausting contests of 
the Swabian emperors in Italy, the in- 
trinsic weakness produced by a law of 
the empire, according to which the reign- 
ing sovereign could not retain an impe- 
rial fief more than a year in his hands, 
gradually prepared that independence of 
the German aristocracy, which reached 
its height about the middle of the thir- 
teenth century. During this period the 
French crown had been insensibly gain- 
ing strength; and as one monarch de- 
generated into the mere head of a con- 
federacy, the other acquired unlimited 
power over a solid kingdom. 

It would be tedious, and not very in- 
structive, to follow the details of Ger- 
man public law during the middle ages : 
nor are the more important parts of it 
easily separable from civil history. In 
this relation they will find a place in a 
subsequent chapter of the present work. 



BesauQon, the peasants were attached to the soil, 
not being capable of leaving it without the lord's 
consent; and that in some places he even inherited 
their goods in exclusion of the kindred. I recol- 
lect to have read in some part of Voltaire's corre- 
spondence, an anecdote of his interference, with that 
zeal against oppression which is the shining side 
of his moral character, in behalf of some of these 
wretched slaves of Franchecomte. 

About the middle of the fifteenth century, some 
Catalonian serfs who had escaped into France 
being claimed by their lords, the parliament of 
Toulouse declared that every man who entered 
the kingdom en crinnt France, should become free. 
The liberty of our kingdom is such, says Mezeray, 
that its air communicates freedom to those who 
breathe it, and our kings are too august to reign 
over any but freemen.— Villaret, t. xv., p. 348. How 
much pretence Mezeray had for such a flourish, 
may be decided by the former part of this note. 



Part II.] 



FEUDAL SYSTEM. 



oa 



France demands a more minute attention ; 
and in tracing the character of the feudal 
system in that country, we shall find 
ourselves developing the progress of a 
very different polity. 

To understand in what degree the peers 
Privileges of ^"d barous of France, during 
the Freiicii the prevalence of feudal prin- 
vassais. ciples, were independent of the 
crown, we must look at their leading 
privileges. These may be reckoned : — 
1. The right of coining money; 2. That 
of waging private war; 3. The exemption 
from all public tributes, except the feudal 
aids; 4. The freedom from legislative 
control; and, 5. The exclusive exercise 
of original judicature in their dominions. 
Privileges so enormous, and so contrary 
to all principles of sovereignty, might lead 
us, in strictness, to account France rather 
a collection of states, partially allied to 
each other, than a single monarchy. 

I. Silver and gold were not very scarce 
Coining in the first ages of the French mon- 
money. archy ; but they passed more by 
weight than by tale. A lax and ignorant 
government, which had not learned the lu- 
crative mysteries of a royal mint, was not 
particularly solicitous to give its subjects 
the security of a known stamp in their 
exchanges.* In some cities of France, 
money appears to have been coined by 
private authority before the time of Char- 
lemagne ; at least one of his capitularies 
forbids the circulation of any that had 
not been stamped in the royal mint. His 
successors indulged some of their vassals 
with the privilege of coining money for 
the use of their own territories, but not 
without the royal stamp. About the be- 
ginning of the tenth century, however, 
the lords, among their other assumptions 
of independence, issued money with no 
marks but their own.f At the accession 
of Hugh Capet, as many as a hundred 
and fifty are said to have exercised this 
power. Even under St. Louis, it was pos- 
sessed by about eighty ; who, excluding, 
as far as possible, the royal coin from 

* The practice of keeping fine gold and silver 
uncoined prevailed among private persons, as well 
as iu the treasury, down to the time of Philip the 
Fair. Nothmg is more common than to find, in the 
instruments of earlier times, payments or fines 
stipulated by weight of gold or silver. Le Blanc 
therefore thinks that little money was coined in 
France, and that only for small payments. — Traite 
des Monnoyes. it is curious, that though there 
are many gold coins extant of the first race of 
kings, yet few or none are preserved of the second 
or third, before the reign of Philip the Fair. — Du 
Cange, w Moneta. 

t Vaissette, Hist, de Languedoc, t. ii , p. 110. 
Rcc, des Historiens, t. xi., pref , p. 180. Du Cange, 
V. Moneta. 



circulation, enriched themselves at their 
subjects' expense by high duties (seign- 
iorages), which they imposed upon every 
new coinage, as well as by debasing its 
standard.* In 1185, Philip Augustus re- 
quests the Abbot of Corvey, who had de- 
sisted from using his own mint, to let the 
royal money of Paris circulate through 
his territories ; promising that, when it 
should please the abbot to coin money 
afresh for himself, the king would not 
oppose its circulation.! 

Several regulations were made by Lou- 
is IX. to limit, as far as lay in his power, 
the exercise of this baronial privilege; 
and, in particular, by enacting that the 
royal money should circulate in the do- 
mains of those barons who had mints, 
concurrently with their own ; and ex- 
clusively within the territories of those 
who did not enjoy that right. Philip the 
Fair established royal officers of inspec- 
tion in every private mint. It was as- 
serted in his reign, as a general truth, 
that no subject might coin silver money, j 
In fact, the adulteration practised in those 
baronial mints had reduced their pretend- 
ed silver to a sort of black metal, as it 
was called (moneta nigra), into which 
httle entered but copper. Silver, howev- 
er, and even gold, were coined by the 
dukes of Britany so long as that fief con- 
tinued to exist. No subjects ever enjoy- 
ed the right of coining silver in England 
without the royal stamp and superintend- 
ence :^ a remarkable proof of the restraint 
in which the feudal aristocracy was al- 
ways held in this country. 

II. The passion of revenge, always 
among the most ungovernable Right of 
in human nature, acts with such pn^ate war. 
violence upon barbarians, that it is utterly 
beyond the control of their imperfect ar- 
rangements of polity. It seems to them 

* Le Blanc, Traite des Monnoyes, p. 91. 

t Du Cange, v. Moneta. Velly, Hist, de France, 
t. ii., p. 93. Villaret, t. xiv., p. 200. 

X Du Cange, v. Moneta. The right of debasing 
the coin was also claimed by this prince as a choice 
flower of his crown. Item, abaisser et amenuser la 
monnoye, est privilege especial au roy de son droit 
royal, si que a luy appartient, et non a autre, et en- 
core en un seul cas, c'est a scavoir en necessite, et 
lors ne vient pas le ganeg ne convertit en son pro- 
fit especial, mais en profit, et en la defence du com- 
mun. This was in a process commenced by the 
king's procureur-general against the Comte de Nev- 
ers for defacing his coin. — Le Blanc, Traite des 
Monnoyes, p. 92. In many places the lord took a 
sum from his tenants evi.ry three years, under the 
name of monetagium or locagium, in lieu of deba- 
sing his money. This was finally abolished in 1380. 
— Du Cange, v. Monetagium. 

^ I do not extend this to the fact; for in the an- 
archy of Stephen's reign, both bishops and barons 
coined money for themselves. — Hoveden, p. 490. 



94 



EUROPE DURING THE MIDDLE AGES. 



[C«AP. II, 



no part of the social compact, to sacrifice 
the privilege which nature has placed in 
the arm of valour. Gradually, however, 
these fiercer feelings are blunted, and an- 
other passion, hardly less powerful than 
resentment, is brought to play in a contra- 
ry direction. The earlier object accord- 
ingly of jurisprudence is to establish a 
fixed atonement for injuries, as much for 
the preservation of tranquillity as the pre- 
vention of crime. Such were the were- 
gilds of the barbaric codes, which, for a dif- 
ferent purpose, I have already mention- 
ed.* But whether it were that the kindred 
did not always accept, or the criminal 
ofler, the legal composition, or that other 
causes of quarrel occurred, private feuds 
(faida) were perpetually breaiving out, and 
many of Charlemagne's capitularies are 
directed against them. After his time, 
all hope of restraining so inveterate a 
practice was at an end ; and every man 
who owned a castle to shelter him in case 
of defeat, and a sufficient number of de- 
pendants to take the field, was at liberty 
to retaliate upon his neighbours whenev- 
er he thought himself injured. It must 
be kept in mind, that there was frequent- 
ly either no jurisdiction to which he 
could appeal, or no power to enforce its 
awards ; so that we may consider the 
higher nobility of France as in a state of 
nature with respect to each other, and en- 
titled to avail themselves of all legitimate 
grounds of hostility. The right of waging 
private war was moderated by Louis IX., 
checked by Philip IV., suppressed by 
Charles VI., but a few vestiges of its 
practice may be found still later.f 

III. In the modern condition of gov- 
immunity ernmcnts, taxation is a chief en- 
from lax- gine of the well-compacted ma- 
ation. chinery which regulates the sys- 



* The antiquity of compositions for murder is il- 
lustrated by Iliad S. 498, where, in the descrip- 
tion of the shield of Achilles, two disputants are 
represented wrangling before the judge for the wer- 
egild, or price of blood ; iivcxa xoivr]s avSpos avoip- 

OlfltVH. 

t The subject of private warfare is treated so ex- 
actly and perspicuously by Robertson, that I should 
only waste the reader's time by dwelling so long 
upon it as its extent and importance would other- 
wise demand. — See Hist, of Charles V., vol. i., note 
21. Few leading passages in the monuments of the 
middle ages, relative to this subject, have escaped 
the penetrating eye of that historian ; and they are 
arranged so well as to form a comprehensive trea- 
tise in small compass. I know not that I could 
add any much worthy of notice, unless it be the 
following. In the treaty between Philip Augustus 
and Richard Cceur de Lion (1194), the latter re- 
fused to admit the insertion of an article, that none 
of the barons of either party should molest the oth- 
er ; lest he should infringe the customs of Poitou 
and his other dominions, in quibus consuetumerat 
ab aiitiquo, ut magnates causas proprias invicem 



tem. The payments, the prohi- Revenues 
bitions, the licenses, the watch- of Kings 
fulness of collection, the evasions °' i''""*^^' 
of fraud, the penalties and forfeitures, (hat 
attend a fiscal code of laws, present con- 
tinually to the mind of the most remote 
and humble individual, *^the notion of a 
supreme, vigilant, and coercive authority. 
But the early European kingdoms knew 
neither the necessities nor the ingenuity 
of modern finance. From their demesne 
lands, the kings of France and Lombardy 
supplied the common expenses of a bar- 
barous court. ICven Charlemagne regu- 
lated the economy of his farms with the 
minuteness of a steward, and a large pro- 
portion of his capitularies are directed to 
this object. Their actual revenue was 
chiefly derived from free gifts made, ac- 
cording to an ancient German custom, at 
the annual assembhes* of the nation, 
from amercements paid by allodial propri- 
etors for default of military service, and 
from the freda, or fines accruing to the 
judge out of compositions for murder.f 
These amounted to one third of the whole 
weregild ; one third of this was paid over 
by the count to the royal exchequer. 
After the feudal government prevailed in 
France, and neither the heribannum nor 
the weregild continued in use, there 
seems to have been hardly any source 
of regular revenue besides the domanial 
estates of the crown : unless we may 
reckon as such, that during a journey, 
the king had a prescriptive right to be 
supplied with necessaries by the towns 
and abbeys through which he passed ; 
commuted sometimes into petty regular 
payments, called droits de giste et de 
chevauche.J Hugh Capet was nearly in- 
digent as King of France ; though, as 
Count of Paris and Orleans, he might 
take the feudal aids and reliefs of his vas- 
sals. Several other small emoluments 
of himself and his successors, whatever 
they may since have been considered, 
were in that age rather seigniorial than 
royal. The rights of toll, of customs, of 
alienage (aubaine), generally even the re- 
gale, or enjoyment of the temporalities 

gladiis allegarent. — Hoveden, p. 741 (in Saville, 
Script. Anglic). 

* Du Cange, Dissertation quatrifeme sur Join- 
ville. 

t Mably, 1. i., c. 2, note 3. Du Cange, voc. He- 
ribannum, Fredum. 

X Velly, t. ii., p. 329. Villaret, t. xiv., p. 174- 
195. Recueil des Ilistoriens, t. xiv., preface, p. 
37. The last is a perspicuous account of the royal 
revenue in the twelfth century. But far the most 
luminous view of that subject, for the three next 
ages, is displayed by M. de Pastoret, in his prefa- 
ces to the fifteenth and sixteenth volumes of the 
Ordonnances des Rois. 



Part II.] 



FEUDAL SYSTEM. 



95 



of vacant episcopal sees and other ec- 
clesiastical benefices,* were possessed 
witliin their own domains by the great 
feudatories of the crown. They, 1 ap- 
prehend, contributed nothing to their sov- 
ereign ; not even those aids which the 
feudal customs enjoined. f 

The history of the royal revenue in 
Kxactions France is however too important 
from the to be Slightly passed over. As 
J«"s- the necessities of government in- 
creased, partly through the love of mag- 
nificence and pageantry, introduced by 
the crusades and the temper of chivalry, 
partly in consequence of employing hired 
troops instead of the feudal militia, it be- 
came impossible to defray its expenses 
by the ordinary means. Several devices, 
therefore, were tried, in order to replen- 
ish the exchequer. One of these was by 
extorting money from the Jews. It is 
almost incredible to what a length this 
was carried. Usury, forbidden by law 
and superstition to Christians, was con- 
fined to this industrious and covetous peo- 
ple. J It is now no secret, that all reg- 
ulations interfering with the interest of 
money render its terms more rigorous 
and burdensome. The children of Israel 
grew rich in despite of insult and oppres- 
sion, and retaliated upon their Christian 
debtors. If an historian of Philip Au- 
gustus may be believed, they possessed 
almost one half of Paris. Unquestion- 
ably they must have had support both at 
the court and in the halls of justice. The 
policy of the kings of France was to em- 
ploy them as a sponge to suck their sub- 
jects' money, which they might after- 
ward express with less odium than direct 
taxation would incur. Philip Augustus 
released all Christians in his dominions 
from their debts to the Jews, reserving a 
fifth part to himself^ He afterward ex- 
pelled the whole nation from France. 
But they appear to have returned again ; 
whether by stealth, or, as is more proba- 
ble, by purchasing permission. St. Louis 
twice banished and twice recalled the 

* The Duke of Burgundy and Count of Cham- 
pagne did not possess the regale. But it was en- 
joyed by all the other peers ; by the dukes of Nor- 
mandy, Guienne, and Britany ; the counts of Tou- 
louse, Poitou, and Flanders. — Mably, 1. iii., c. 4. 
Recueil des Historiens, t. ii., p. 229, and t. xiv., p. 
53. Ordonnances des Rois, t. i., p. C21. 

+ I have never met with any instance of a relief, 
aid, or other feudal contribution paid by the vassals 
of the French crown ; but in this negative propo- 
fiition it is possible that I may be deceived. 

t The .Jews were celebrated for usury as early 
as the sixth century. — Greg. Turon., 1. iv., c. 12, 
and 1. vii., c. 23. 

() Rigord, in Du Chesne, Hist. Franc. Script., t. 
iii., p. B 



Jews. A series of alternate persecution 
and tolerance was borne by this extraordi- 
nary people with an invincible perseve- 
rance, and a talent of accumulating rich- 
es which kept pace with their plunderers ; 
till new schemes of finance supplying the 
turn, they were finally expelled under 
Charles VI., and never afterward obtain- 
ed any legal establishment in France.* 

A much more extensive plan of rapine 
was carried on by lowering the Debasement 
standard of coin. Originally the of the coin, 
pound, a money of account, was equiv- 
alent to twenty ounces of silver; and 
divided into twenty pieces of coin (sous), 
each equal consequently to nearly three 
shillings and fourpence of our new Eng- 
hsh money.f At the revolution, the 
money of P'rance had been depreciated in 
the proportion of seventy-three to one, 
and the sol was about equal to an Enghsh 
half-penny. This was the effect of a 
long contmuance of fraudulent and arbi 
trary government. The abuse began un- 
der Phihp I., in 1103, who alloyed his sil- 
ver coin with a third of copper. So good 
an example was not lost upon subse- 
quent princes ; till under St. Louis, the 
mark-weight of silver, or eight ounces, 
was equivalent to fifty sous of the deba- 
sed coin. Nevertheless these changes 
seem hitherto to have produced no dis- 
content ; Avhether it were that a people, 
neither commercial nor enlightened, did 
not readily perceive their tendency ; or, 
as has been ingeniously conjectured, that 
these successive diminutions of the stand- 
ard were nearly counterbalanced by an 
augmentation in the value of silver, oc- 
casioned by the drain of money during 
the crusades, with which they were about 
contemporaneous. I But the rapacity of 
Philip the Fair kept no measures with the 
public ; and the mark in his reign had be- 
come equal to eight livres, or a hundred 
and sixty sous of money. Dissatisfac- 
tion, and even tumults, arose in conse- 
quence, and he was compelled to restore 
the coin to its standard under St. Louis. ^ 



* Villaret, t. ix., p. 433. Metz contained, and 
I suppose still contains, a great many .Jews ; but 
Metz was not part of the ancient kingdom. 

t Besides this silver coin, there was a golden sol, 
worth forty pence. Le Blanc thinks the solidi of 
the Salique-law and capitularies mean the latter 
piece of money. The denarius, or penny, was 
worth two sous six deniers of modern French coin. 

% Villaret, t. xiv., p. 198. The price of commod- 
ities, he asserts, did not rise till the time of St. 
Louis. If this be said on good authority, it is a re- 
markable fact ; but in England we know very little 
of prices before that period, and I doubt if their his- 
tory has been better traced in France. 

<^ It is curious, and not perhaps unimportant, to 
learn the course pursued in adjusting payments 



96 



EUROPE DURING THE MIDDLE AGES. 



[Chap. XL 



His successors practised the same arts 
of enriching their treasury ; under PhiHp 
of Valois, the mark was again worth eight 
livres. But the fihn had now dropped from 
the eyes of the people ; and these adul- 
terations of money, rendered more vexa- 
tious by continued recoinages of the cur- 
rent pieces, upon which a fee was extort- 
ed by the moneyers, showed in their true 
light as mingled fraud and robbery.* 

These resources of government, how- 
Direct tax- ever, by no means superseded 
ation. the necessity of more direct 
taxation. The kings of France exacted 
money from the roturiers, and particular- 
ly the inhabitants of towns within their 
domains. In this they only acted as pro- 
prietors, or suzerains ; and the barons 
took the same course in their own lands. 
Philip Augustus first ventured upon a 
stretch of prerogative, which, in the words 
of his biographer, disturbed all France. 
He deprived by force, says Rigord, both 
his own vassals, who had been accustom- 
ed to boast of their immunities, and their 
feudal tenants, of a third part of their 
goods. f Such arbitrary taxation of the 
nobility, who deemed that their military 
service discharged them from all pecu- 
niary burdens, France was far too aris- 
tocratical a country to bear. It seems 
not to have been repeated ; and his suc- 
cessors generally pursued more legiti- 
mate courses. Upon obtaining any con- 
tribution, it was usual to grant letters 
patent, declaring that it had been freely 
given, and should not be turned into pre- 
cedent in time to come. Several of these 
letters patent of Philip the Fair are ex- 

tipon the restoration of good coin, which happen- 
ed pretty frequently in the fourteenth century, 
when the States-General, or popular clamour, for- 
ced the court to retract its fraudulent policy. Le 
Blanc has published several ordinances nearly to 
the same effect. One of Charles VI. explains the 
rnethod adopted rather more fully than the rest. 
All debts incurred since the depreciated coin began 
to circulate were to be paid in that coin, or accord- 
ing to its value. Those incurred previously to its 
commencement were to be paid according to the 
value of the money circulating at the time of the 
contract. Item, que tous les vrais emprunts faits 
en denicrs sans fraude, se payeront en telle mon- 
noye comnie Ton aura emprunte, si elle a plein cours 
au temps du payement, et sinon, ils payeront en 
monnoye coursable lors selon la valeur et le prix du 
marc d'or ou d'argent, p. 32. 

* Continuator Gul. de Nangis in Spicilegio, t. 
iii. For the successive changes in the value of 
French coins, the reader may consult Le Blanc's 
treatise, or the Ordonnances des Hois ; or he may 
find a summary view of them in Du Cange, v. Mo- 
nela. The bad consequences of these innovations 
are well treated by M. de Pastoret, in his elaborate 
preface to the sixteenth volume of the Ordonnances 
des Rois, p. 40. 

i- Du Chesne, t. v., p. 43. 



tant, and published in the general collec- 
tion of ordinances.* But in the reign of 
this monarch, a great innovation took 
place in the French constitution, which, 
though it principally atfected the method 
of levying money, may seem to fall more 
naturally under the next head of consid- 
eration. 

IV. There is no part of the French 
feudal policy so remarkable as y^rg,,,,,!- 
the entire absence of all su- supreme le- 
preme legislation. We find it gisiaiive 
difficult to conceive the exist- ^""^"'■"y- 
ence of a political society, nominally one 
kingdom, and under one head, in which, 
for more than three hundred years, there 
was wanting the most essential attribute 
of government. It will be requisite, 
however, to take this up a little higher, 
and inquire what was the original legis- 
lature of the French monarchy. 

Arbitrary rule, at least in theory, was 
uncongenial to the character of q^. .^ . 
the northern nations. Neither legiliSnve 
the power of making laws, nor assemblies 
that of applying them to the cir- '"' ^"""• 
cumstances of particular cases, was left 
at the discretion of the sovereign. The 
Lombard kings held assemblies every 
year at Pavia, where the chief officers 
of the crown and proprietors of lands 
deliberated upon all legislative meas- 
ures, in the presence, and, nominally at 
least, with the consent, of the multitude.! 
Frequent mention is made of similar pub- 
lic meetings in France by the historians 
of the Merovingian kings, and still more 
unequivocally by their statutes. J These 
assemblies have been called parliaments 



* Fasons scavoir et recognoissons que la derni- 
ere subvention que ils nous ont faite (les barons, 
vassaux et nobles d'Auvergne) de pure grace sans 
ce que ils y fussent tenus que de grace ; et voulons 
et leur octroyons que les autres subventions que 
ils nous ont faites ne leur facent nul prejudice, es 
choses esquelles ils n'etoient tenus, ne par ce nul 
nouveau droit ne nous soit acquis ne amenuisie. — 
Ordonnance de 1304, apud Mably, 1. iv., c. 3, note 5. 
See other authorities in the same place. 

t Luitprand, king of the Lombards, says that 
his laws sibi placuisseuria cum omnibus judicibus 
de Austria; et Neustris partibus, et de Tuscix fin- 
ibus, cum reliquis fidelibus meis Langobardis, et 
omni populo assistente. — Muratori, Dissert. 22. 

+ Mably, 1. i., c. 1, note 1. Lindebrog., Codex 
Legum Antiquarum, p. 363, 369. The following 
passage, quoted by Mably (c. ii., n. 6) from the pre- 
amble of the revised Salique law under Clotaire II. 
is explicit. Temponbus Clotairii regis una cum 
principibus suis, id est 33 episcopis et 31 ducibus 
et 7i) comitibus, vel caetero populo constituta est. 
A remarkable instance of the use of vel instead of 
et, which was not uncommon, and is noted by Du 
Cange under the word Vel. Another proof of it 
occurs in the very next quotation of Mably from 
the edict of 615, cum pontificibus, vel cum magnis 
viris optimatibus. 



Part II.] 



FEUDAL SYSTEM. 



97 



of the Champ de Mars, having originally 
been held in the month of March. We 
know very little of their constituent mem- 
bers ; but it is probable that every allo- 
dial proprietor had a legal right to assist 
in their deliberations ; and at least equal- 
ly so, that the efficient power was nearly 
confined to the leading aristocracy. Such, 
indeed, is the impression conveyed by a 
remarkable passage of Hincmar, arch- 
bishop of Rheims, during the time of 
Charles the Bald, who has preserved, on 
the autliority of a writer contemporary 
with Charlemagne, a sketch of the Prank- 
ish government under that great prince. 
Two assemblies (placita) were annually 
held. In the first, all regulations 

Assemblies r ■ ^ Ii i i- i 

held by of importance to the public weal 
charie- for the ensuing year were en- 
""^S'le- acted ; and to this, he says, the 
whole body of clergy and laity repaired ; 
the greater, to deliberate upon what was 
fitting to be done ; and the less, to con- 
firm by their voluntary assent, not through 
deference to power, or sometimes even 
to discuss, the resolutions of their superi- 
ors.* In the second annual assembly, 
the chief men and officers of state were 
alone admitted to consult upon the most 
urgent affairs of government. They de- 
bated, in each of these, upon certain ca- 
pitularies, or short proposals, laid before 
them by the king. The clergy and nobles 
met in separate chambers, though some- 
times united for the purposes of delibera- 
tion. In these assemblies, principally, 
I presume, in the more numerous of the 
two annually summoned, that extensive 
body of laws, the capitularies of Charle- 
magne, were enacted. And though it 
would contradict the testimony just ad- 
duced from Hincmar, to suppose that the 
lesser freeholders took a vey effective 
share in public counsels, yet their pres- 
ence, and the usage of requiring their 
assent, indicate the liberal principles 
upon which the system of Charlemagne 
was founded. It is continually expressed 
in his capitularies, and those of his family, 
that they were enacted by general con- 

* Consuetude tunc temporis talis erat, ut non 
sspius, sed bis in anno placita duo tenerentur. 
Ununi, quando ordinabatur status totius regni ad 
anni vortentis spatium ; quod ordinatum nullus 
eventus rerum, nisi sumina necessitas, qua simili- 
ter toli regno nicumbebat, mutabat. In quo placito 
generalitas universorum majorum, tarn clericorum 
quamlaicorum,conveniebat ; seniores, propter con- 
silium ordinandum ; mmores, propter idem consil- 
ium suspiciendam, et interdum paritertractandum, 
et non ex potestate, sed ex proprio mentis in- 
tellectu vel sententia, contirmandum. — Hincmar, 
Epist. 5, de ordme palatii. I have not translated 
the word majorum in the above quotation, not ap- 
prehending its sense. 
G 



sent.* In one of Louis the Debonair, we 
even trace the first germe of represent- 
ative legislation. Every count is direct- 
ed to bring with him to the general as- 
sembly twelve Scabini, if there should be 
so many in his county ; or, if not, should 
fill up the number out of the most re- 
spectable persons resident. These Sca- 
bini were judicial assessors of the count, 
chosen by the allodial proprietors.! 

The circumstances, however, of the 
French empire for several subsequent 
ages were exceedingly adverse to such 
enlarged schemes of polity. The nobles 
contemned the imbecile descendants of 
Charlemagne ; and the people, or lesser 
freeholders, if they escaped absolute vil- 
lanage, lost their immediate relation to 
the supreme government in the subor- 
dination to their lord established by the 
feudal law. Yet we may trace the shadow 
of ancient popular rights in one constitu- 
tional function of high importance, the 
choice of a sovereign. Historians who 
relate the election of an emperor or king 
of France, seldom omit to specify the 
consent of the multitude, as well as of the 
temporal and spiritual aristocracy ; and 
even in solemn instruments that record 
such transactions, we find a sort of im- 
portance attached to the popular suf- 
frage. | It is surely less probable that a 



* Capitula qurs praeterito anno legi Salicae cum 
omnium consensu addenda esse censuimus. (A. 
D. 801.) Ut populus interrogetur de capitulis quae 
in lege noviter addita sunt, et postquam omnes cou- 
senserint, subscriptiones et manutirmationes suas 
in ipsis capitulis faciant. (A. D. 813.) Capitularia 
patris nostri quae Franci pro lege tenenda judica- 
verunt. (A. D. 837.) I have borrowed these quo- 
tations from Mably, who remarks that the word 
pnpulus is never used in the earlier laws. See too 
Du Cange, vv. Lex, Mallum, Pactum. 

+ Vult dominus Imperator ut in tale placitum 
quale ille nunc jusserit, veniat unusquisque comes, 
et adducat secum duodecim scabinos si tanti fu- 
erint ; sin autem, de melioribus hominibus illius 
comitatus suppleat numerum duodenarium. — Ma- 
bly, 1. ii., c. ii. 

X It has been intimated in another place, p. 67, 
that the French monarchy seems not to have been 
strictly hereditary under the later kings of the Me- 
rovingian race : at least expressions indicating a 
formal election are frequently employed by histo- 
rians. Pepin of course came in by the choice of 
the nation. At his death he requested the consent 
of the counts and prelates to the succession of his 
sons (Raluzii Capitularia, p. 187) ; though they had 
bound themselves by oath at his consecration never 
to elect a king out of another family. Ut nun- 
quam de alterius lumbis regem eligere praesumant. 
— (Formula Consecrationis Pippini in Recueil des 
Historiens, t. v.) In the instrument of partition 
by Charlemagne among his desceixlants, he pro 
vides for their immediate succession in absolute 
terms, without any mention of consent. But in the 
event of the decease of one of his sons leaving a child 
whom the people shall choose, the other princes were 
to permit him to reign. — Baluze, p. 440.. This is 



98 



EUROPE DURING THE MIDDLE AGES, 



[Chap. II, 



recognition of this elective right should 
have been introduced as a mere ceremo- 
ny, than that the form should have sur- 
vived after length of time and revolutions 
of government had almost obliterated the 
recollection of its meaning. 

It must, however, be impossible to as- 
certain even the theoretical privileges of 
the subjects of Charlemagne, much more 
to decide how far they were substantial or 
illusory. We can only assert in general, 
that there continued to be some mixture 
of democracy in the French constitution 
during the reign of Charlemagne and his 
first successors. The primeval German 
institutions were not eradicated. In the 
Capitularies, the consent of the people is 
frequently expressed. Fifty years after 
Charlemagne, his grandson, Charles the 
Bald, succinctly expresses the theory of 
legislative power. A law, he says, is 
made by the people's consent and the 
king's enactment.* It would hardly be 



repeated more perspicuously in the partition made 
by Louis I., in 817. Si quis eorum decedens le- 
gitimos lilios reliquerit, non inter eos potestas ipsa 
dividatur, sed potius populus pariter conveniens, 
unum ex iis, quern dominus voluerit, eligat, et 
hunc senior frater in loco fratris et filii recipiat. — 
Baluze, p. 577. Proofs of popular consent given 
to the succession of kings during the two next cen- 
turies are frequent, but of less importance on ac- 
count of the irregular condition of government. 
Even after Hugh Capet's accession, hereditary 
right was far from being established. The first six 
kings of this dynasty procured the co-optation of 
their sons, by having them crowned during their 
own lives. And this was done without the con- 
sent of the chief vassals. — (Recueil des Hist., t. .xi., 
p. 133.) In the reign of Robert it was a great ques- 
tion whether the elder son should be thus designa- 
ted as heir in preference to his younger brother, 
whom the queen, Constance, was anxious to place 
upon the throne. Odolric, bishop of Orleans, writes 
Jto Fulbert, bishop of Chartres, in terms which lead 
one to think that neither hereditary succession 
nor primogeniture was settled on any fixed prin- 
ciple. — (Id., t. X., p. 504.) And a writer in the same 
collection, about the year 1000, expresses himself 
in the following manner : Melius est electioni 
principis non subscribere, quam post subscription- 
em electum contemners ; m altero enim libertatis 
amor laudatur, in altero servilis contumacia probro 
datur. Tres namque generales elecliones novimus ; 
quarum una est regis vel imperatoris, altera ponti- 
ficis, altera abbatis. Et primam quidein facit con- 
cordia totius regni ; secundam vero unanimitas 
civium et cleri ; tertiam sanius consilium coenobi- 
ticae congregaiionis.— (Id., p. 626.) At the corona- 
tion of Philip I., in 1059, the nobility and people 
(milites et populi tarn majores quam minores) tes- 
tified their consent by crying, Laudamus, volumus, 
fiat, t. xi., p. 33. I suppose, if search were made, 
that similar testimonies might he found still later ; 
and perhaps hereditary succession cannot be con- 
sidered as a fundamental law till the reign of Philip 
Augustus, the era of many changes in the French 
constitution. 

* Lex consensu populi fit, constitutione regis. — 
Recueil des Hist, t. vii., p. 656. 



warranted by analogy or precedent, to 
interpret the Avord people so very nar- 
rowly as to exclude any allodial proprie- 
tors, among whom, however unequal in 
opulence, no legal inequality of rank is 
supposed to have yet arisen. 

But by whatever authority laws were 
enacted, whoever were the constituent 
members of national assemblies, they 
ceased to be held in about seventy years 
from the death of Charlemagne. The 
latest capitularies are of Carloman, in 
882.* From this time there ensues a long 
blank in the history of French legislation. 
The kingdom was as a great fief, or rath- 
er as a bundle of fiefs, and the king little 
more than one of a number of feudal no- 
bles, differing rather in dignity than in 
power from some of the rest. The royal 
council was composed only of barons, or 
tenants in chief, prelates, and household 
officers. These now probably delibera- 
ted in private, as we hear no more of the 
consenting multitude. Political functions 
were not in that age so clearly separated 
as we are taught to fancy they should be ; 
this council advised the king Rgyai council 
in matters of government, con- of the iiurd 
firmed and consented to his '^^''*' 
grants, and judged in all civil and crimi- 
nal cases, where any peers of their court 
were concerned.! The great vassals of 
the crown acted for themselves in their 
own territories, with the assistance of 
councils similar to that of the king. 
Such indeed was the symmetry of feudal 
customs, that the manerial court of every 
vavassor represented in miniature that of 
his sovereign.^ 

But, notwithstanding the want of any 
permanent legislation during so long a 



* It is generally said, that the capitularies cease 
with Charles the Simple, who died in 921. But 
Baluze has published only two under the name of 
that prince ; the first, a declaration of his queen's 
jointure; the second, an arbitration of disputes in 
the church of Tongres ; neither surely deserving 
the appellation of a law. 

t Regal i potentia in nullo abuti volentes, says 
Hugh Capet, omnia negotia reipublicae in consulta- 
tione et sententia fidelium nostrorum disponimus. 
— Recueil des Hist., t. x., p. 392. The subscrip- 
tions of these royal counsellors were necessary for 
the confirmation, or, at least, the authentication of 
charters, as was also the case in England, Spain, 
and Italy. This practice continued in England till 
the reign of John. 

The Curia regis seems to have differed only in 
name from the Concilium regium. It is also called 
Curia parium, from the equality of the barons who 
composed it, standing in the same feudal degree of 
relation to the sovereign. But we are not yet ar- 
rived at the subject of jurisdiction, which it is very 
difficult to keep distinct from what is immediately 
before us. 

t Recueil des Hist., t. xi.,p. 300, and preface, p, 
179. Vaisselte, Hist, de Languedoc, t. ii., p. 508. 



Paut n.] 



FEUDAL SYSTEM. 



99 



period, instances occur, in which the 
kings of France appear to have acted 
With the concurrence of an assembly. 
Occasional "^^re uumerous and more par- 
assembiiea ticularly Summoned than the 
of barons, royal couucil. At such a con- 
gress, held in 1146, the crusade of Louis 
VIL was undertaken.* We find also an 
ordinance of the same prince in some 
collections, reciting that he had convoked 
a general assembly at Soissons, where 
many prelates and barons then present 
had consented and requested that private 
wars might cease for the term o( ten I 



certainly by no means inconsistent with 
probability, though not sufficiently estab- 
lished by evidence.* 

Excepting a few instances, most of 
which have been mentioned, it does not 
appear that the kings of the house of 
Capet acted according to the advice and 
deliberation of any national assembly, 
such as assisted the Norman sovereigns 
of England ; nor was any consent re- 
quired ibr the validity of their edicts, ex- 
cept that of the ordinary council, chiefly 
formed of their household officers and 
less powerful vassals. This is at first 



years.f The famous Saladine tithe was sight very remarkable. For there can 



imposed upon lay as well as ecclesiastical 
revenues by a similar convention in 1 188.| 
And when Innocent IV., during his con- 
test with the Emperor Frederick, request- 
ed an asylum in France, St. Louis, though 
much inclined to favour him, ventured 
only to give a conditional permission, pro- 
vided it were agreeable to his barons, 
whom, he said, a king of France was 
bound to consult in such circumstances. 
Accordingly he assembled the French 
barons, who unanimously refused their 
consent.^ 

It was the ancient custom of the kings 
of France as well as of England, and in- 
Cours PI6- deed of all those vassals who af- 
nieres. fectcd a kind of sovereignty, to 
hold general meetings of their barons, 
called Cours Plenieres or Parliaments, at 
the great festivals of the year. These 
assemblies were principally intended to 
make a display of magnificence, and to 
keep the feudal tenants in good-humour ; 
nor is it easy to discover that they passed 
in any thing but pageantry. [| Some re- 
spectable antiquaries have however been 
of opinion, that affairs of state were oc- 
casionally discussed in them ; and this is 



* Velly, t. iii., p. 119. This, he observes, is the 
first instance in which the word parliament is used 
for a deUberative assembly. 

t Ego Ludovicus Uei giatia Francorum rex, ad 
reprimendum fervorem malignantiimi, et compe- 
scendum violentas pra?dorum manus, postulationi- 
bus cleri et assensu baroniaj, toti regno pacem con- 
stituimus. Ea causa, anno Incarnati Verbi 1155, 
iv idus Jun. Suessionense concilium celebre ad- 
unavimus, et affuerunt archiepiscopi Remensis, 
Senonensis et eorum suffraganei ; item barones, 
comes Flandrensis, Trecensis, et Nivernensis et 
quamplures alii, et dux Burgundiae. Ex quorum 
beneplacito ordinavimus a veniente Pasch^ ad 
decern annos, ut omnes ecclesiae regni et omnes 

agricolae etc. pacem habeant et securitatcm 

In pacem istam juraverunt Dux Burg:undiE, Comes 
Flandriae, et reliqui barones quiaderant. 

This ordinance is published in Du Chesne, 
Script. Reruin. Gallicarum, t. iv., and in Recueil 
des Histor., t. xiv., p. 387 ; but not in the general 
collection. 

t Velly, t. iii., p. 315. ^ Ibid., t. iv., p. 306. 

II Du Cange, Dissert. 5, sur Joinville. 
G2 



be no doubt that the government of Hen- 
ry I. or Henry II. was incomparably 
stronger than that of Louis VI. or Louis 
VII. But this apparent absoluteness of 
the latter was the result of their real 
weakness and the disorganization of the 
monarchy. The peers of France were 
infrequent in their attendance upon the 
king's council, because they denied its 
coercive authority. It was a Limitations 
fundamental principle, that ev- of royal 
erv feudal tenant was so far I'OY';'" '" '*" 

-' . ... , 1- -. /. gislation. 

sovereign within the limits of 
his fief, that he could not be bound by 
any law without his consent. The king, 
says St. Louis in his Establishments, 
cannot make proclamation, that is, de- 
clare any new law, in the territory of a 
baron without his consent, nor can the 
baron do so in that of avavassor.f Thus, 
if legislative power be essential to sover- 
eignty, we cannot in strictness assert 
the King of France to have been sover- 
eign beyond the extent of his domanial 
territory. Nothing can more strikingly 
illustrate the dissimilitude of the French 
and English constitutions of government, 
than the sentence above cited from the 
code of St. Louis. 

Upon occasions, when the necessity of 
common deliberation, or of giv- substitutes 
ing to new provisions more ex- for legl^la- 
tensive scope than the limits of |jy^ *"""'"^ 
a single fief, was too glaring to 
be overlooked, congresses of neighbour- 
ing lords met in order to agree upon reso- 
lutions, which each of them undertook to 
execute within his own domains. The 
king was sometimes a contracting party, 
but without any coercive authority over 
the rest. Thus we have what is called 
an ordinance, but, in reality, an agree- 

♦ Mem. de I'Acad. des Inscript., t. xli. Recueil 
des Hist., t. xi., preface, p. 155. 

t Ne li Rois ne puet mettre ban en la terre au 
baron sans son assentment, ne li Bers [Baron] ne 
puet mettre ban en la terre au vavasor.— Ordoa- 
nances deb Rois, t. i., p. 12G. 



100 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



ment, between the king (Philip Augus- 
tus), the Countess of Troyes or Cham- 
pagne, and the Lord of Dampierre (Count 
of Flanders), relating to the Jews in their 
domains ; which agreement or ordinance, 
it is said, should endure " until ourselves, 
and the Countess of Troyes, and Guy de 
Dampierre, who make this contract, shall 
dissolve it with the consent of such of our 
barons as we shall summon for that pur- 
pose."* 

Ecclesiastical councils were another 
substitute for a regular legislature ; and 
this defect in the political constitution 
rendered their encroachments less ob- 
noxious, and almost unavoidable. That 
of Troyes in 878, composed perhaps in 
part of laymen, imposed a fine upon the 
invaders of church property.! And the 
council of Toulouse, in 1229, prohibited 
the erection of any new fortresses, or the 
entering into any leagues, except against 
the enemies of religion; and ordained 
that judges should administer justice gra- 
tuitously, and pubhsh the decrees of the 
council four times in the year.| 

The first unequivocal attempt, for it 
First meas- ^^^^ nothing more, at general 
uresofgen- legislation, was under Louis 
«^fanegis- viIL, in 1223, in an ordinance, 
which, like several of that age, 
relates to the condition and usurious deal- 
ings of the Jews. It is declared in the 
preamble to have been enacted, per as- 
sensum archiepiscoporum, episcoporum, 
comitum, baronum, et miUtum regni 
Franciae, qui Judaeos habent, et qui Judaeos 
non habent. This recital is probably un- 
true, and intended to cloak the bold inno- 
vation contained in the last clause of the 
following provision : Sciendum, quod nos 
et barones nostri statuimus et ordinavi- 
mus de statu Judseorum quod nuUus nos- 
trum alterius Judaeos recipere potest vel 
retinere ; et hoc intelligendum est tarn de his 
qui stabilimenlum juraverint, quam de illis 
qui non juraverint.^ This was renewed 
with some alteration in 1230, de coramuni 
consilio baronum nostrorum.|| 

But whatever obedience the vassals of 
the crown might pay to this ordinance, 
their original exemption from legislative 
control remained, as we have seen, un- 
impaired at the date of the Establishments 

* Quousque nos, et comitissa Trecensis, et 
Guido de Domna petra, qui hoc facimus, per nos, 
et illos de baronibus nostris, quos ad hoc vocare vo- 
lumus, illud difiTaciamus. — Ordoiinances des Rois, 
t. i., p. 39. This ordinance bears no date, but it 
was probably between 1218 and 1?23, the year of 
Philip's death. 

t Vaissette, Hist, de Languedoc, t. ii., p. 6. 

X Velly, t. iv., p. 132. 

\ Ordonn. des Rois, t. i., p. 47. || Id., p. 53. 



! of St. Louis, about 1269 ; and their ill- 
judged confidence in this feudal privilege 
still led them to absent themselves from 
the royal council. It seems impossible to 
doubt that the barons of France might 
have asserted the same right, which 
those of England had obtained, that of 
being duly summoned by special writ, 
and thus have rendered their consent 
necessary to every measure of legisla- 
tion. But the fortunes of France were 
different. The Establishments of St. 
Louis are declared to be made " par 
grand conseil de sages hommes et de 
bons clers," but no mention is made of 
any consent given by the barons ; nor 
does it often, if ever, occur in subsequent 
ordinances of the French kings. 

The nobility did not long continue safe 
in their immunity from the king's i,egisiaiiTe 
legislative power. In the en- power of 
suing reign of Philip the Bold, [JJ^rM^^g" 
Beaumanoir lays it down, though 
in very moderate and doubtful terms, 
that " when the king makes any ordi- 
nance specially for his own domains, 
the barons do not cease to act in their 
territories according to the ancient usage ; 
but, when the ordinance is general, it 
ought to run through the whole kingdom, 
and we ought to believe that it is made 
with good advice, and for the common 
benefit."* In another place he says with 
more positiveness, that "the king is 
sovereign above all, and has of right the 
general custody of the realm, for which 
cause he may make what ordinances he 
pleases for the common good, and what 
he ordains ought to be observed ; nor is 
there any one so great but may be drawn 
into the king's court for default of right 
or for false judgment, or in matters that 
affect the sovereign."! These latter 
words give us a clew to the solution of 
the problem, by what means an absolute 
monarchy was established in causes of 
France. For though the barons "i'^- 
would have been little influenced by the 
authority of a lawyer like Beaumanoir, 
they Avere much less able to resist the 
coercive logic of a judicious tribunal. It 
was in vain for them to deny the obliga- 
tion of royal ordinances within their own 
domains, when they were compelled to 
acknowledge the jurisdiction of the par- 
liament of Paris, which took a very dif- 
ferent view of their privileges. This 
progress of the royal jurisdiction will 
fall under the next topic of inquiry, and 
is only now hinted at, as the probable 
means of confirming the absolute legisla- 
tive power of the French crown. 



Coutumes de Beauvoisis, c. 48. f C. 34 



Part II.] 



FEUDAL SYSTEM. 



101 



The ultimate source, however, of this 
increased authority, will be found in the 
commanding attitude assumed by the 
kings of France from the reign of Philip 
Augustus, and particularly in the annex- 
ation of the twp great fiefs of Normandy 
and Toulouse. Though the ch&telains 
and vavassors who had depended upon 
those fiefs before their reunion were, 
agreeably to the text of St. Louis's ordi- 
nance, fully sovereign, in respect of le- 
gislation, within their territories, yet they 
were httle competent, and perhaps little 
disposed, to oflfer any opposition to the 
royal edicts ; and the same relative su- 
periority of force, which had given the 
first kings of the house of Capet a tolera- 
bly effective control over the vassals de- 
pendant on Paris and Orleans, while they 
hardly pretended to any over Normandy 
and Toulouse, was now extended to the 
greater part of the kingdom. St. Louis, 
in his scrupulous moderation, forbore to 
avail himself of all the advantages pre- 
sented by the circumstances of his reign ; 
and his Establishments bear testimony to 
a state of political society, which, even 
at the moment of their promulgation, 
was passing away. The next thirty 
years after his death, Avith no marked 
crisis, and with little disturbance, silently 
demolished the feudal system, such as 
had been established in France during 
„!$, the dark confusion of the tenth century. 
Philip the Fair, by help of his lawyers 
and his financiers, found himself, at the 



* It is almost unanimously agreed among French 
writers, that Philip the Fair first introduced a rep- 
resentation of the towns into his national assembly 
of States General. Nevertheless, the Chronicles 
of St. Denis, and other historians of rather a late 
date, assert that the deputies of towns were pres- 
ent at a parliament in 1241, to advise the king what 
should be done in consequence of the Count of Aii- 
gouleme's refusal of homage. — Boulainvilliers, Hist, 
de I'Ancien Gouvernement de France, t. ii., p. 20. 
Villaret, t. ix.., p. 125. The latter pretends even 
that they may be traced a century farther back : 
on voit deja les gens de bonnes villes assister aux 
^tats de 1145, ibid. But he quotes no authority 
for this ; and his vague language does not justify 
«s in supposing that any representation of the 
three estates, properly so understood, did, or in- 
deed could, take place in 1145, while the power of 
the aristocracy was unbroken, and very few towns 
had been incorporated. If it be true that the depu- 
ties of some royal towns were summoned to the 
parliament of 1241, the conclusion must not be in- 
ferred, that they possessed any consenting voice, 
nor perhaps that they formed, strictly speaking, an 
integrant portion of the assembly. There is reason 
to believe, that deputies from the royal burghs of 
Scotland occasionally appeared at the bar of par- 
liament long before they had any deliberative voice. 
— Pinkerton's Hist, of Scotland, vol. i., p. 371. 

An ordinance of St. Louis, quoted in a very re- 
spectable book, Vaissette's History of Languedoc, 
t. iii., p. 480, but not published in the Recueil des 



beginning of the fourteenth century, the 
real master of his subjects. 

There was however one essential priv- 
ilege which he could not hope convocation 
to overturn by force, the immu- 9f"'e states 

... ^ •' . ' . , , General by 

mty from taxation enjoyed by phiiipthe 
his barons. This, it will be re- Fa""- 
membered, embraced the whole extent 
of their fiefs, and their te lantry of every 
description ; the king having no more 
right to impose a tallage upon the de- 
mesne towns of his vassals, than upon 
themselves. Thus his resources, in point 
of taxation, were limited to his own do- 
mains ; including certainly, under Philip 
the Fair, many of the noblest cities in 
France, but by no means sufficient to 
meet his increasing necessities. We 
have seen already the r"\pedients em- 
ployed by this rapacious monarch ; a 
shameless depreciation of the coin, and, 
what was much more justifiable, the 
levying taxes within the territories of 
his vassals by their consent. Of these 
measures, the first was odious, the sec- 
ond slow and imperfect. Confiding in 
his sovereign authority, though recently, 
yet almost completely established, and 
little apprehensive of the feudal princi- 
ples, already grown obsolete and dis- 
countenanced, he was bold enough to 
make an extraordinary innovation in the 
French constitution. This was the con- 
vocation of the States General, a repre- 
sentative body, composed of the three 
orders of the nation.* They were first 

Ordonnances, not only shows the existence, in one 
instance, of a provincial legislative assembly, but is 
the earliest proof perhaps of the tiers etat appear- 
ing as a constituent part of it. This relates to the 
seneschaussee, or county, of Beaucaire in Langue- 
doc, and bears date in 1254. It provides, that if the 
seneschal shall think fit to prohibit the export of 
merchandise, he shall summon some of the pre- 
lates, barons, knights, and inhabitants of the chief 
towns, by whose advice he shall issue such prohi- 
bition, and not recall it, when made, without like 
advice. But though it is interesting to see the pro- 
gressive importance of the citizens of towns, yet 
this temporary and insulated ordinance is not of 
itself sufficient to establish a constitutional right. 
Neither do we find therein any evidence of repre- 
sentation ; it rather appears that the persons as- 
sisting in this assembly were notables, selected by 
the seneschal. 

I am not aware of any instance of regular pro- 
vincial estates being summoned with such full 
powers, although it was very common in the four- 
teenth century to ask their consent to grants of 
money, when the court was unwilling to convoke 
the States General. Yet there is a passage in a 
book of considerable credit, the Grand Customary, 
or Somme Rurale of Bouteiller, which seems to 
render general the particular case of the seneschaus- 
see of Beaucaire. Bouteiller wrote about the end 
of the fourteenth century. The great courts sum- 
moned from time to time by the baillis and senes- 
chals were called assizes. Their usual function 



.02 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



convened in 1302, in order to give more 
weight to the king's cause, in his great 
quarrel with Boniface VIII. ; but their 
earliest grant of a subsidy is in 1314. 
Thus the nobility surrendered to the 
crown their last privilege of territorial 
independence ; and having first submit- 
ted to its appellant jurisdiction over their 
tribunals, next to its legislative suprem- 
acy, now suffering their own dependants 
to become, as it were, immediate, and a 
third estate to rise up almost co-ordinate 
with themselves, endowed with new fran- 
chises, and bearing a new relation to the 
monarchy. 

It is impossible not to perceive the mo- 
tives of Philip in imbodying the deputies 
of towns as a separate estate in the na- 
tional representation. He might, no ques- 
tion, have convoked a parliament of his 
barons, and obtained a pecuniary contri- 
bution, which they would have levied 
upon their burgesses and other tenants. 
But besides the ulterior policy of dimin- 
ishing the control of the barons over 
their dependants, he had good reason to 
expect more liberal aid from the immedi- 
ate representatives of the people, than 
through the concession of a dissatisfied 
aristocracy. He must be blind indeed, 
says Pasquier, who does not see that the 
roturier was expressly summoned to this 
assembly, contrary to the ancient insti- 
tutions of France, for no other reason 
than that, inasmuch as the burden was 
intended to fall principally upon him, he 
might engage himself so far by promise, 
that he could not afterward murmur or 
become refractory.* Nor would I deny 
the influence of more generous princi- 
ples ; the example of neighbouring coun- 
tries, the respect due to the progressive 
civilization and opulence of the towns, 

was to administer justice, especially by way of ap- 
peal, and perhaps to redress abuses of inferior offi- 
cers. But he seems to give them a more extended 
authority. En assise, he says, appelles les sages 
at seigneurs du pais, peuvent estre mises sus nou- 
velles constitutions, et ordonnances sur le pais et 
destruites autre que seront grevables, et un autre 
temps non, et doivent etre publiees, afin que nul ne 
les pueust ignorer, et lors ne les peut ne doit ja- 
mais nul redarguer. — Mem. de I'Acad. des Inscrip- 
tions, t. XXX., p. 606. 

The taiUe was assessed by respectable persons 
chosen by the advice of the parish priests and oth- 
ers, which gave the people a sort of share in the 
repartition, to use a French term, of public burdens ; 
a matter of no small importance, where a tax is 
levied on visible property. — Ordonnances des Rois, 
p. 291. Beaumanoir, p. 269. This however con- 
tinued, I believe, to be the practice in later times ; 
1 know it is scf in the present system of France ; 
and is perfectly distinguishable from a popular con- 
sent to taxation. 
* Recherches de la France, 1. ii., c. 7. 



and the application of that ancient maxim 
of the northern monarchies, that who- 
ever was elevated to the perfect dignity 
of a freeman, acquired a claim to partici- 
pate in the imposition of public tributes 
It is very difficult to ascertain the con- 
stitutional rights of the States 
General, claimed or admitted, thlstaiM 
during forty years after their General as 
first convocation. If indeed we ""=*''^"o"- 
could implicitly confide in an historian of 
the sixteenth century, who asserts that 
Louis Hutin bound himself and his suc- 
cessors not to levy any tax without the 
consent of the three estates, the problem 
would find its solution.* This ample 
charter does not appear in the French ar- 
chives ; and though by no means to be 
rejected on that account, when we con- 
sider the strong motives for its destruc- 
tion, cannot fairly be adduced as an au- 
thentic fact. Nor can we altogether in- 
fer, perhaps, from the collection of ordi- 
nances, that the crown had ever inten 
tionally divested itself of the right to im- 
pose tallages on its domanial tenants. 
All others, however, were certainly ex 
empted from that prerogative ; and there 
seems to have been a general sentiment, 
that no tax whatever could be levied with- 
out free consent of the estates. f Louis 
Hutin, in a charter granted to the nobles 
and burgesses of Picardy, promises to 
abolish the unjtist taxes (maltotes) impo- 
sed by his father ;J and in another instru- 
ment, called the charter of Normandy, 
declares that he renounces for himself 
and his successors all undue tallages and 
exactions, except in case of evident util- 
ity. § This exception is doubtless of per- 
ilous ambiguity ; yet, as the charter was 
literally wrested from the king by an in- 
surrectionary league, it might be expect- 
ed that the same spirit would rebel against 
his royal interpretation of state-necessi- 
ty. His successor, Philip the Long, tried 
the experiment of a gabelle, or excise 
upon salt. But it produced so much dis- 
content, that he was compelled to assem- 
ble the States General, and to publish an 
ordinance declaring that the impost was 
not designed to be perpetual, and that, if 

♦ Boulainvilliers (Hist, de I'Anc. Gouvernement, 
t. ii., p. 128) refers for this to Nicholas Gilles, a 
chronicler of no great repute. 

t Mably (Observat. sur I'Hist. de France, 1. v., 
c. 1) is positive against the right of Philip the Fair, 
and his successors to impose taxes. Montlosier 
(Monarchie Fran(;aise, t. i., p. 202) is of the same 
opinion. In fact, there is reason to believe, that 
the kings in general did not claim that prerogative 
absolutely, whatever pretexts they might set up for 
occasional stretches of power. 

t Ordonnances des Rois, t. i., p. 566. 

^ Idem, 1. 1., p. 589. 



Part II.] 



FEUDAL SYSTEM. 



103 



a sufficient supply for the existing war 
could be found elsewliere, it should in- 
stantly determine.* Whether this was 
done, I do not discover ; nor do I con- 
ceive that any of the sons of Philip the | 
Fair, inheriting much of his rapacity and 
ambition, abstained from extorting money 
without consent. Philip of Valois renew- 
ed and augmented the duties on salt by 
his own prerogative, nor had the abuse 
of debasing the current coin been ever 
carried to such a height as during his 
reign, and the first years of his successor. 
These exactions, aggravated by the smart 
of a hostile invasion, produced a very re- 
markable concussion in the government 
of France. 

I have been obliged to advert, in an- 
statesGen- Other place, to the memorable 
eraioii355 resistance made by the Estates 
and 1356. General of 1355 and 1356 to the 
royal authority, on account of its insep- 
arable connexion with the civil history 
of France. f In the present chapter, the 
assumption of political influence by those 
assemblies deserves particular notice. 
Not that they pretended to restore the 
ancient constitution of the northern na- 
tions, still flourishing in Spain and Eng- 
land, the participation of legislative pow- 
er with the crown. Five hundred years 
of anarchy and ignorance had swept away 
all remembrance of those general diets, 
in which the capitularies of the Carlovin- 
gian dynasty had been established by 
common consent. Charlemagne himself 
was hardly known to the French of the 
fourteenth century, except as the hero 
of some silly romance or ballad. The 
States General remonstrated, indeed, 
against abuses, and especially the most 
flagrant of all, the adulteration of money; 
but the ordinance granting redress ema- 
nated altogether from the king, and with- 
out the least reference to their consent, 
which sometimes appears to be studiously 
omitted. I But the privilege upon which 
the states under John solely relied for 

* Ordonnances des Rois, t. i., p. 679. 

■t Chap, i., p. 42. 

X The proceedings of States General held under 
Philip IV. and his sons have left no trace in the 
French statule-hook. Two ordinances alone, out 
of some hundred enacted by PhiUp of Valois, ap- 
pear to have been founded upon their suggestions. 

It is absolutely certain that the States General 
of France had at no period, and in no instance, a 
co-ortiinate legislative authority with the crown, 
or even a consenting voice. Mably, Boulainvil- 
liers, and Montlosier, are as decisive on this sub- 
ject as the most courtly writers of that country. 
It follows as a just consequence, that France never 
possessed a free constitution ; nor had the monar- 
chy any limitations in respect of enacting laws, 
save those which, until the reign of Philip the Fair, 
the feudal principles had imposed. 



securing the redress of grievances, was 
that of granting money, and of regulating 
its collection. The latter, indeed, though 
for convenience il maybe devolved upon 
the executive government, appears to be 
incident to every assembly in which the 
right of taxation resides. That, accord- 
ingly, which met in 1355 nominated a 
committee, chosen out of the three or- 
ders, which was to sit after their separa- 
tion, and which the king bound himself 
to consult, not only as to the internal ar- 
rangements of his administration, but 
upon every proposition of peace or armi- 
stice with England. Deputies were de- 
spatched into each district, to superintend 
the collection, and receive the produce 
of the subsidy granted by the states.* 
These assumptions of power would not 
long, we may be certain, have left the 
sole authority of legislation in the king, 
and might perhaps be censured as usurpa- 
tion, if the peculiar emergency in which 
France was then placed did not furnish 
their defence. But, if it be true that the 
kingdom was reduced to the utmost dan- 
ger and exhaustion, as much by malver- 
sation of its government as by the ar 
mies of Edward III., who shall deny to 
its representatives the rights of ultimate 
sovereignty, and of suspending at least 
the royal prerogatives, by the abuse of 
which they were falling into destruc- 
tion]! I confess that it is exceedingly 
difficult, or perhaps impracticable, with 
such information as we possess, to de- 
cide upon the motives and conduct of the 
States General, in their several meetings 
before and after the battle of Poitiers. 
Arbitrary power prevailed; and its op- 
ponents became, of course, the theme of 
obloquy with modern historians. Frois- 
sart, however, does not seem to impute 
any fault to these famous assemblies of 
the States General ; and still less a more 
contemporary historian, the anonymous 
continuator of Nangis. Their notices, 
however, are very slight ; and our chief 
knowledge of the parliamentary history 
of France, if I may employ the expres- 
sion, must be collected from the royal 
ordinances made upon these occasions, 
or from unpublished accounts of their 

* Ordonnances des Rois, t. hi., p. 21, and preface, 
p. 42. This preface by M. Secousse, the editor, 
gives a very clear view of the general and provin- 
cial assemblies held in the reign of .lohn. Boulain- 
villiers, Hist, de I'Anc. Gouvernement de France, 
t. ii., or Villaret, t. ix., may be perused with advan- 
tage. 

i The second continuator of Nangis in the Spi- 
cilegium dwells on the heavy ta.\es, diminution of 
money, and general oppressiveness of government 
in this age, t. iii., p 108. 



104 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II. 



transactions. Some of these, which are 
quoted by the later Frencli historians, are 
of course inaccessible to a writer in this 
country. But a manuscript in the British 
Museum, containing the early proceed- 
ings of that assembly which met in Octo- 
ber, 1356, immediately after the battle of 
Poitiers, by no means leads to an unfa- 
vourable estimate of its intentions.* The 
tone of their representations to the Duke 
of Normandy (Charles V., not then call- 
ed dauphin) is full of loyal respect ; their 
complaints of bad administration, though 
bold and pointed, not outrageous ; their 
offers of subsidy hberal. The necessity 
of restoring the coin is strongly repre- 
sented, as the grand condition upon which 
they consented to tax the people, who 
had been long defrauded by the base 
money of Philip the Fair and his succes- 
sors.! 

* Cotton MSS. Titus, t. xii., fol. 58-74. This 
manuscript is noticed, as an important document, 
in the preface to the third volume of Ordonnances, 
p. 48, by M. Secousse, who had found it mention- 
ed in the Bibliotheque Historique of Le Long, No. 
11,242. No French antiquary appears, at least be- 
fore that time, to have seen it ; but Boulainvilliers 
conjectured that it related to the assembly of stales 
in February, 1356 (1357), and M. Secousse suppo- 
sed it rather to be the original journal of the pre- 
ceding meeting in October, 1356, from which a 
copy, found among the manuscripts of Dupuy, and 
frequently referred to by Secousse himself in his 
preface, had been taken. M. Secousse was per- 
fectly right in supposing the manuscript in ques- 
tion to relate to the proceedings of October, and not 
of February ; but it is not an original instrument. 
It forms part of a small volume written on vellum, 
and containing several other treatises. It seems, 
however, as far as I can judge, to be another copy 
of the account which Dupuy possessed, and which 
Secousse so often quotes, under the name of Pro- 
c^s-verbal. 

t Et estoit et est I'entente de ceulx qui a la ditte 
convocation estoient que quelconque ottroy ou ayde 
qu'ils feissent, ils eussent bonne monnoye et esta- 
ble selon I'advis des trois estats — et que les char- 
tres et lettres faites pour les reformations du roy- 
aume par le roy Philippe le bel, et toutes celles 
qui furent faites par le roy notre seigneur qui est & 
present fussent confirmees entennees tenues et 
gardees de point en point ; et toutes les aides quel- 
conques qui faites soient fussent recues et distri- 
buees par ceulx qui soient a ce commis par les trois 
estats, et autorisees par M. le Due et sur certaines 
autres conditions et modifications justes et raisson- 
ables et prouffitables et semble que ceste aide eust 
ete moult grant et moult prouffitable, et trop plus 
que aides de fait de monnoye. Car elle se feroit 
de volonte du peuple et consentement commun 
selon Dieu et selon conscience : Et le prouffit que 
on prent et veult on prendre sur le fait de la mon- 
noye duquel on veult faire le fait de la guerre, et 
ce soit a la destruction et a este au temps passe du 
roy et du royaume et des subjets ; Et si se destruit 
le billon tant par fontures et blanchis comme autre- 
ment, ne le fait ne peust durer longuement qu'il ne 
vienne a dest-uction si on continue longuement ; 
Et si est tout certain que les gens d'armes ne 
vouldroient estre contens de leurs gaiges par foible 
monnoye, &c. 



But whatever opportunity might now 
be afforded for establishing a just Troubles 
and free constitution in France "' ^'afs- 
was entirely lost. [A. D. 1357.] Charles, 
inexperienced and surrounded by evil 
counsellors, thought the States General 
inclined to encroach upon his rights, of 
which, in the best part of his life, he was 
always abundantly careful. He dismiss- 
ed therefore the assembly, and had re- 
course to the easy but ruinous expedient 
of debasing the coin. This led to sedi- 
tions at Paris, by which his authority and 
even his hfe were endangered. In Feb- 
ruary, 1357, three months after the last 
meeting had been dissolved, he was 
obliged to convoke the states again, and 
to enact an ordinance conformable to the 
petitions tendered by the former assem- 
bly.* This contained many excellent 
provisions, both for the redress of abnses, 
and the vigorous prosecution of the war 
against Edward ; and it is difficult to con- 
ceive, that men who advised measures so 
conducive to the public weal, could have 
been the blind instruments of the King 
of Navarre. But this, as I have already 
observed, is a problem in history that 
we cannot hope to resolve. It appears, 
however, that in a few weeks after the 
promulgation of this ordinance, the pro- 
ceedings of the reformers fell into dis- 
credit, and their commission of thirty-six, 
to whom the collection of the nev/ sub- 
sidy, the redress of grievances, and, in 
fact, the whole administration of govern- 
ment, had been intrusted, became unpop- 
ular. The subsidy produced much less 
than they had led the people to expect ; 
briefly, the usual consequence of demo- 
cratical emotions in a monarchy took 
place. Disappointed by the failure of 
hopes unreasonably entertained, and im- 
providently encouraged, and disgusted by 
the excesses of the violent demagogues, 
the nation, especially its privileged class- 
es, who seem to have concurred in the 
original proceedings of the Slates Gen- 
eral, attached themselves to the party of 
Charles, and enabled him to quell oppo- 
sition by force. I Marcel, provost of the 
traders, a municipal magistrate of Paris, 
detected in the overt execution of a trai- 
torous conspiracy with the King of Na- 
varre, was put to death by a private hand. 
Whatever there had been of real patriot- 
ism in the States General, artfully con- 
founded, according to the practice of 

♦ Ordonnances des Rois, t. iii., p. 121. 

t Discordia mota, illi tres status ab incepto pro- 
posito cessaverunt. Ex tunc enim regni negotia 
male ire, &c.— Continuator Gul. de Nangis in Spi- 
cilegio, t. iii., p. 115. 



Part II] 



FEUDAL SYSTEM. 



105 



courts, with these schemes of disaffected 
men, shared in the common obloquy ; 
whatever substantial reforms had been 
projected, the government threw aside as 
seditious innovations. Charles, who had 
assumed the title of regent, found in the 
States General assembled at Paris in 
1359, a very different disposition from 
that which their predecessors had dis- 
played, and publicly restored all counsel- 
lors whoni in the former troubles he had 
been compelled to discard. Thus the 
monarchy resettled itself on its ancient 
basis ; or, more properly, acquired addi- 
tional stability.* 

Both John, after the peace of Bre- 
Taxes im- *^^&"^' ^"^ Charles V. imposed 
posed by taxcs without couscnt of the 
John and States General. f The latter in- 
tharies . jgg^j hardly ever convoked that 
assembly. [A. D. 1380.] Upon his death 
Remedial ^he contention between the 
ordinance of crown and representative body 
Charles VI. ^^^g renewed, and in the first 
meeting held after the accession of 
Charles VI. the government was com- 
pelled to revoke all taxes illegally im- 
posed since the reign of Phihp IV. This 
is the most remedial ordinance, perhaps, 
in the history of French legislation. " We 
will, ordain, and grant," says the king, 
" that the aids, subsidies, and impositions, 
of whatever kind, and however imposed, 
that have had course in the realm since 
the reign of our predecessor Philip the 
Fair, shall be repealed and abolished ; 
and we will and decree, that by the course 
which the said impositions have had, we 
or our successors shall not have acquired 
any right, nor shall any prejudice be 
wrought to our people, nor to their privi- 
leges and liberties, which shall be re- 
established in as full a manner as they 
enjoyed them in the reign of Philip the 
Fair, or at any time since ; and we will 
and decree, that if any thing has been 
done contrary to them since that time 
to the present hour, neither we nor our 
successors shall take any advantage 
therefrom. "t If circumstances had turn- 



* A very full account of these transactions is 
given by Secousse, in his History of Charles the 
Bad, p. 107, and in his preface to the third volume 
of the Ordonn. des Rois. The reader must make 
allowance for the usual partialities of a French his- 
torian, where an opposition to the reigning pnnce 
is his subject. A contrary bias is manifested by 
Boulainvilliers and Mably, whom, however, it is 
well worth while to hear. 

+ Mably, 1. v., c. 5, note 5. 

i Ordonnances des Rois, t. vi., p. 564. The 
ordinance is long, containing frequent repetitions, 
and a great redundance of words, intended to give 
more force, or at least solemnity. 



ed out favourably for the cause of liberty, 
this ordinance might have been the basis 
of a free constitution, in respect at least 
of immunity from arbitrary taxation. 
But the coercive measures of the court 
and tumultuous spirit of the Parisians 
produced an open quarrel, in which the 
popular party met with a decisive failure. 
It seems indeed impossible, that a 
number of deputies, elected merely for 
the purpose of granting money, can pos- 
sess that weight, or be invested in the 
eyes of their constituents with that 
awfulness of station, which is required 
to withstand the royal authority. The 
States General had no right of redressing 
abuses, except by petition ; no share in 
the exercise of sovereignty, which ia 
inseparable from the legislative power. 
Hence, even in their proper department 
of imposing taxes, they were supposed 
incapable of binding their constituenta 
without their specific assent. Whethei 
it were the timidity of the deputies, or 
false notions of freedom, which produced 
this doctrine, it was evidently repugnant 
to the stability and dignity of a represent- 
ative assembly. Nor was it less ruin- 
ous in practice than mistaken in theory 
For as the necessary subsidies, after be- 
ing provisionally granted by the states, 
were often rejected by their electors, the 
king found a reasonable pretence for dis- 
pensing with the concurrence of his sub- 
jects when he levied contributions upon 
them. 

The States General were convoked but 
rarely under Charles VI. and states General 

VII., both of whom levied under Charles 

money without their concur- ^^'• 
rence. Yet there are remarkable testi- 
monies under the latter of these princes, 
that the sanction of national representa- 
tives was still esteemed strictly requisite 
to any ordinance imposing a general tax, 
however the emergency of circumstances 
might excuse a more arbitrary procedure. 
Thus Charles VII., in 1436, declares that 
he has set up again the aids which had 
been previously abolished by the consent 
of the three estates* And in the important 
edict establishing the companies of or- 
donnance, which is recited to be done by 
the advice and counsel of the States Gen- 
eral assembled at Orleans, the forty-first 
section appears to bear a necessary con- 
struction, that no tallage could lawfully 
be imposed without such consent. f It is 
maintained indeed by some writers, that 

* Ordonnances des Rois, t. xiii., p. 211. 

t Ibid., p. 312. Boulainvilliers mentions other 
instances, where the states granted money during 
this reign, t. iii., p. 70. 



106 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II 



the perpetual taille established about the 
same time was actually granted by these 
states of M:}9, tliough it does not so ap- 
pear upon th.e face of any ordinance.* 
And certainly this is consonant to the 
real and recognised constitution of that 
age. 

But the crafty advisers of courts in the 
Provincial fifteenth century, enliglitcned by 
states. experience of past dangers, were 
averse to encountering these great polit- 
ical masses, from which there Avcre, even 
in peaceful times, some disquieting inter- 
ferences, some testimonies of public spirit 
and recollections of liberty to apprehend. 
The kings of France, indeed, iiad a re- 
source, which generally enabled them to 
avoid a convocation of the States Gen- 
eral, without viol^ing the national fran- 
chises. From provincial assemblies, com- 
posed of the three orders, they usually 
obtained more money than they could 
have extracted from the common repre- 
sentatives of the nation, and heard less 
of remonstrance and demand. f Langue- 
doc in particular had her own assembly 
of states, and was rarely called upon to 
send deputies to the general body, or 
representatives of what was called the 
Langucdoil. But Auvergne, Normandy, 
and other provinces belonging to the lat- 
ter division, had frequent convocations of 
their respective estates, during the inter- 
vals of the States General ; intervals, 
which by this means were protracted far 
beyond that duration to wliich the exi- 
gences of the crown would otherwise 
have confined them.| This was one of 
the essential diflerences between the 
constitutions of France and England, and 
arose out of the original disease of the 
former monarchy, the distraction and 
want of unity consequent upon the de- 
cline of Charlemagne's family, which 
separated the diff'erent provhices in re- 
spect of their interests and domestic gov- 
ernment from each other. 

But the formality of consent, whether 
by general or provincial states, now ceas- 
ed to be reckoned indispensable. The 
lawyers had rarely seconded any efl"orts 
to restrain arbitrary power: in their ha- 
tred of feudal principles, especially those 
of territorial jurisdiction, every generous 
sentiment of freedom was proscribed; or 
if they admitted that absolute prerogative 
might require some checks, it was such 
only as themselves, not the national rep- 
resentatives, should impose. Charles 



* Brequigny, preface au treizieme tome des Or- 
donnances. — Boulainvilliers, t. iii., p. lOS. 
t Villaret, t. xi., p. 270. 
j Ordonnances des Rois, t. iii., preface. 



VII. levied money by his own authority 
Louis XI. carried this encroach- Taxes of 
ment to the highest pitch of ex- '-""'^ ^'• 
action. It was the boast of courtiers, 
that he first released the kings of Franco 
from dependance (hors de i)age) ; or, in 
other words, that he efl^ectually demol- 
ished those barriers, which, however im- 
perfect and ill-placed, had imposed some 
impediment to the establishment of des 
potism.* 

The exactions of Louis, however, 
though borne with patience, did not pass 
for legal with those upon whom they 
pressed. Men still remembered their an- 
cient privileges, which they might see 
with mortifit<ntion well preserved in Eng- 
land. " There is no monarch or lord 
upon earth (says Philip de Comines, him- 
self bred in courts), who can raise a far- 
thing upon his subjects, beyond his own 
domains, without their free concession, 
except through tyranny and violence. It 
maybe objected that in some cases there 
may not be time to assemble them, and 
that war will bear no delay ; but I reply (he 
proceeds), that such haste ought not to 
be made, and there will be time enough ; 
and I tell you that princes are more pow- 
erful, and more dreaded by their enemies, 
when they undertake any thing Avith the 
consent of their subjects."! 

The States General met but twice du- 
ring the reign of Louis XL, and states Gene- 
on neither occasion for the pur- rai of Tours 
pose of granting money. But '" '■***■ 
an assembly in the first year of Charles 
VIII. , the States of Tours, in 1484, is too 
important to be overlooked, as it marks 
the last struggle of the French nation by 
its legal representatives for immunity 
from arbitrary taxation. 

A warm contention arose for the re- 
gency upon the accession of Charles 
Vlll., between his aunt, Anne de Beaujeu, 
whom the late king had appointed by tes- 
tament, and the princes of the blood, at 
the head of whom stood the Duke of 
Orleans, afterward Louis XII. The lat- 
ter combined to demand a convocation 

* The preface to the sixteenth volume of Ordon- 
nances, before quoted, displays a lamentable pic- 
ture of the internal situation of France in conse- 
quence of e.xcessive taxation, and other abuses, 
'rhese evils, in a less aggravated degree, cciitinued 
ever since to retard the improvement, and diniuiish 
the intrinsic prosperity, of a country so extraordi- 
narily endowed with natural advantages. Philip 
de (Aimines was forcibly struck with tin; difVerent 
situation of England and the Netherlands. And 
Sir John Forlescue has a remarkable passage on 
the poverty and servitude of the French commons, 
contrasted with Knglish freemen. — Difference of 
limited and absolute monarchy, p. 17. 

t M6in. de Comines, 1. iv., c. 19. 



Part II.] 



FEUDAL SYSTEM. 



107 



of the States General, wliich accordingly 
took place. The king's minority and the 
factions at court seemed no unfavourable 
omens for liberty. But a scheme was 
artfully contrived, which had the most 
direct tendency to break the force of a 
popular assembly. The deputies were 
classed in six nations, who debated in 
separate chambers, and consulted each 
other only upon the result of their re- 
spective dehberations. It was easy for 
the court to foment the Jealousies natural 
to such a partition. Two nations, the 
Norman and Burgundian, asserted that 
the right of providing for the regency de- 
volved, in the king's minority, upon the 
States General; a claim of great bold- 
ness, and certainly not much founded 
upon precedents. In virtue of tliis, they 
proposed to form a council, not only of 
the princes, but of certain deputies, to be 
elected by the six nations who composed 
the states. But the other four, those of 
Paris, Aquitaine, Languedoc, and Lan- 
guedoil (which last comprised the cen- 
tral provinces), rejected this plan, from 
which the two former ultimately desisted, 
and the choice of counsellors was left to 
the princes. 

A firmer and more unanimous spirit 
was displayed upon the subject of public 
reformation. The tyranny of Louis XI. 
had been so unbounded, that all ranks 
agreed in calling for redress, and the new 
governors were desirous, at least by pun- 
ishing his favourites, to show their inch- 
nation towards a change of system. 
They were very far, however, from ap- 
proving the propositions of the States 
General. These went to points which 
no court can bear to feel touched, though 
there is seldom any other mode of re- 
dressing public abuses ; the profuse ex- 
pense of the royal household, the num- 
ber of pensions and improvident grants, 
the excessive establishment of troops. 
The states explicitly demanded that the 
taille and all other arbitrary imposts 
should be abolished ; and that from 
thenceforward, " according to the natural 
liberty of France," no tax should be lev- 
ied in the kingdom wjtliout the consent 
of the states. It was with great difficul- 
ty, and through the skilful management 
of the court, that they consented to the 
collection of the taxes payable in the time 
of Charles VII., with the addition of one 
fourth, as a gift to the king upon his ac- 
cession. This subsidy they declare to be 
granted " by way of gift and concession, 
and not otherwise, and so as no one 
should from thenceforward call it a tax, 
but a gift and concession." And this 



was only to be in force for two years, 
after which they stipulated that another 
meeting should be convoked. But it was 
little likely that the government would 
encounter such a risk ; and the princes, 
whose factious views the states had by 
no means seconded, felt no temptation to 
urge again their convocation. No as- 
sembly in the annals of France seems, 
notwithstanding some party selfishnesa 
arising out of the division into nations, to 
have conducted itself with so much pub- 
lic spirit and moderation ; nor had that 
country perhaps ever so fair a prospect 
of establishing a legitimate constitution.* 
V. The riglit of jurisdiction has under- 
gone changes in France and in successive 
the adjacent countries, still more J;,','e"^jfc,'aj 
remarkable than those of the poiuy of 
legislative power; and passed France 
through three very distinct stages, as the 
popular, aristocratic, or regal influence 
predominated in the political system. 
The Franks, Lombards, and original 
Saxons seem alike to have been sciieme or 
jealous of judicial authority, J""^'^"="'>"- 
and averse to surrendering what con- 
cerned every man's private right, out of 
the hands of his neighbours and his 
equals. Every ten families are supposed 
to have had a magistrate of their own 
election : the tithing-man of England, the 
decanus of France and Lombardy.f Next 
in order was the centenarius or hundred- 
ary, whose name expresses the extent 
of his jurisdiction, and who, like the de- 
canus, was chosen by those subject to 
it. J But the authority of these petty 
magistrates was gradually confined to the 
less important subjects of legal inquiry. 
No man, by a capitulary of Charlemagne, 
could be empleaded for his life, or liberty, 
or lands, or servants, in the hundred 
court.§ In such weighty matters, or by 

* I am altogether indebted to Gamier for the 
proceedings of the States of Tours. His account, 
Hist, de France, t. xviii., p. 154-348, is extremely 
copious, and derived from a manuscript journal. 
Comines alludes to them sometimes, but with little 
particularity. 

t The decanus is mentioned by a writer of the 
nkith age as the lowest species of judge, immedi- 
ately under the centenarius. The latter is com- 
pared to the plebanus, or priest of a church, where 
baptism was performed, and the former to an in- 
ferior presbyter. — Du Cange, v. Decanus; and 
Muratori, Anliq. Ital., Dissert, x. 

X It is evident from the Capitularies of Charle- 
magne, Baluze, t. i., p. 420 and 466, that the cen- 
tenarii were elected by the people ; that is, I sup- 
pose, the freeholders. 

() Ut nullus homo in placito centenarii neque ad 
mortem, neque ad libertatem suam amittendam, aut 
ad res reddendas vel mancipia judicetur. Sed ista 
aut in prseseniia conutis vel missorum nostrorum 
judicentur.— Capit., A. D. 812. Baluz., p. 497. 



103 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II, 



way of appeal from the lower jurisdic- 
tions, the count of the district was judge. 
He indeed was appointed by the sover- 
eign ; but his power was checked by as- 
sessors, called Scabini, who held their 
office by the election, or at least the con- 
currence, of the people.* These Scabini 
may be considered as a sort of jury, 
though bearing a closer analogy to the 
Judices Selecti, who sat with the pretor 
in the tribunals of Rome. An ultimate ap- 
peal seems to have lain to the count pal- 
atine, an officer of the royal household ; 
and sometimes causes were decided by 
the sovereign himself.f Such was the 
original model of judicature ; but as com- 
plaints of injustice and neglect were fre- 
quently made against the counts, Charle- 
magne, desirous on every account to 
control them, appointed special judges, 
called Missi Regii, who held assizes from 
place to place, inquired into abuses and 
maleadministration of justice, enforced 
its execution, and expelled inferior judges 
from their offices for misconduct. J 

This judicial system was gradually su- 
perseded by one founded upon totally op- 
posite principles, those of feudal privi- 
Territoriai lege. It is difficult to ascertain 
jurisdiction. j}^g progress of territorial juris- 
diction. In many early charters of the 
French kings, beginning with one of 
Dagobert I., in 630, we find inserted in 
their grants of land an immunity from the 

* Baluzii Capitularia, p. 466. Muratori, Dissert. 
10. Du Cange, v. Scabini. These Scabini may be 
traced by the light of charters down to the eleventh 
century.— Recueildes Historiens, t. vi., preface, p. 
186. There is, in particular, a decisive proof of 
their existence in 918, in a record which I have al- 
ready had occasion to quote. — Vaissette, Hist, de 
Languedoc, t. ii., Appendix, p. 56. Du Cange, 
Baluze, and other antiquaries, have confounded the 
Scabini with the Rachimburgii, of whom we read 
in the oldest laws. But M. Guizot has proved the 
latter were landowners, acting in the county 
courts as judges under the presidency of the count, 
but wholly independent of him. The Scabini in 
Charlemagne's age superseded them. — Essai sur 
I'Histoire de France, p. 259, 272. 

t Du Cange, Dissertation 14, sur Joinville ; and 
Glossary, v. Comites Palatini ; Mem. de I'Acad. 
des Inscript., t. xxx., p. 590. Louis the Debonair 
gave one day in every week for hearing causes ; 
but his subjects were required not to have recourse 
to him, unless where the Missi or the counts had 
not done justice. — Baluze, t. i., p. 668. Charles 
the Bald expressly reserves an appeal to himself 
from the inferior tribunals. — Capit. 869, t. ii., p. 2)5. 
In his reign, there was at least a claim to sover- 
eignty preserved. 

X For the jurisdiction of the Missi Regii, besides 
the Capitularies themselves, see Muratori's eighth 
Dissertation. They went their circuits four times 
a year.— Capitul, A. D. 812. A. D. 823. A ves- 
tige of this institution long continued in the prov- 
ince of Auvergne,under the name of Grands Jours 
d'Auvergne; which Louis XI. revived in 1479. — 
Garnier, Hist, de France, t. xviii., p. 458. 



entrance of the ordinary judges, either to 
hear causes, or to exact certain dues ac- 
cruing to the king and to themselves 
These charters indeed relate to church 
lands, which, as it seems implied by a law 
of Charlemagne, universally possessed 
an exemption from ordinary jurisdiction. 
A precedent, however, in Marculfus, leads 
us to infer a similar immunity to have 
been usually in gifts to private persons.* 
These rights of justice in the beneficiary 
tenants of the crown are attested in sev- 
eral passages of the capitularies. And a 
charter of Louis I. to a private individual 
contains a full and exclusive concession 
of jurisdiction over all persons resident 
within the territory, though subject to the 
appellant control of the royal tribunals. f 
It is obvious, indeed, that an exemption 
from the regular judicial authorities im- 
plied or naturally led to a right of admin- 
istering justice in their place. But this 
could at first hardly extend beyond the 
tributaries or villeins who cultivated their 
master's soil, or, at most, to free persons 
without property, resident in the terri- 
tory. To determine their quarrels, or 
chastise their offences, was no very illus- 
trious privilege. An allodial freeholder 
could own no jurisdiction but that of the 
king. It was the general prevalence of 
sub-infeudation which gave importance to 
the territorial jurisdictions of the nobility. 
For now the military tenants, instead of 
repairing to the county-court, sought 
justice in that of their immediate lord; 
or rather the count himself, become the 
suzerain instead of the governor of his 
district, altered the form of his tribunal 
upon the feudal model. | A system of 
procedure so congenial to the spirit of the 
age spread universally over France and 

* Marculfi Formulas, 1. i., c. 17. 

t Et nuUus comes, nee vicarius, nee juniores 
eorum, nee ullus judex publicus illorum homines, 
qui super illorum aprisione habitant, aut in illorum 
proprio, distringere nee judicare praesumant ; sed 
Johannes et lilii sui, et posteritas illorum, illi eos 
judicent et distringant. Et quicquid per legem 
judicaverint, stabilis permaneat. Et si extra legem 
fecerint, per legem emendent. — Baluzii Capitularia, 
t. li., p. 1405. 

This appellant control was preserved by the 
capitulary of Charles' the Bald, quoted already, 
over the territorial, as well as royal tribunals. Si 
aliquis episcopus, vel comes ac vassus noster suo 
homini contra rectum et justitiam fecerit, et si inde 
ad nos reclamaverit, sciat quia, eicut ratio et lex 
est, hoc emendare faciemus. 

t We may perhaps infer, from a capitulary of 
Charlemagne in 809, that the feudal tenants were 
already employed as assessors in the administra- 
tion of justice, concurrently with the Scabini men- 
tioned above. Ut nuUus ad placitum venire coga- 
tur, nisi qui causam habet ad quaerendum, exceptis 
scabiniset vassallis comitum. — Baluz., Capitularia, 
t. i., p. 465. 



Part II.] 



FEUDAL SYSTEM. 



109 



Germany. The tribunals of the king 
were forgotten like his laws ; the one re- 
taining as little authority to correct, as 
the other to regulate, the decisions of a 
territorial judge. The rules of evidence 
were superseded by that monstrous birth 
of ferocity and superstition, the judicial 
combat, and the maxims of law reduced 
to a few capricious customs, which varied 
in almost every barony. 

These rights of administering justice 
were possessed by the owners of fiefs in 
very different degrees; and, in France, 
Its divisions were divided into the high, the 
' middle, and the low jurisdic- 
tion.* The first species alone (la haute 
justice) conveyed the power of life and 
death ; it was inherent in the baron and 
the chatelain, and sometimes enjoyed by 
the simple vavassor. The lower jurisdic- 
tions were not competent to judge in 
capital cases, and consequently forced to 
send such criminals to the court of the 
superior. But in some places, a thief 
taken in the fact might be punished with 
death by a lord who had only the low ju- 
risdiction. In England, this privilege was 
known by the uncouth terms of Infangthef 
and Outfangthef. The high jurisdiction, 
however, was not very common in this 
country, except in the chartered towns. f 

Several customs rendered these rights 
Its adminis- of jurisdiction far less instru- 
tration. mental to tyranny than we might 
mfer from their extent. While the counts 
were yet officers of the crown, they fre- 
quently appointed a deputy, or viscount, to 
administer justice. Ecclesiastical lords, 
who were prohibited by the canons from 
inflicting capital punishment, and sup- 
posed to be unacquainted with the law 
followed in civil courts, or unable to en- 
force it, had an officer by name of advo- 
cate or vidame, whose tenure was often 
feudal and hereditary. The viguiers (vi- 
carii), bailiffs, provosts, and seneschals of 



* Velly t. vi., p. 131. Denisart, Houard, and 
other law-books. 

t A strangely cruel privilege was possessed in 
Aragon by the lords who had not the higher juris- 
diction, and consequently could not publicly exe- 
cute a criminal ; that of starving him to death in 
prison. This was established by law in 12-17. Si 
vassallus domini non habentis merum nee mixtum 
imperium, in loco occiderit vassallum, dominus loci 
potest eum occidere fame, frigore et siti. Etquili- 
bet dominus loci habet hanc jurisdictionem necandi 
fame, frigore et siti in suo loco, licet nuUam aliam 
jurisdictionem criminalem habeat. — Du Cange, 
voc. Fame necare. 

It is remarkable, that the Neapolitan barons had 
no criminal jurisdiction, at least of the higher kind, 
till the reign of Alfonso, in 1443, who sold this de- 
structive privilege, at a time when it was almost 
abolished in other kingdoms. — Giannone, 1. xxii., c. 
5. and 1. xxvi., c. 6. 



lay lords were similar ministers, though 
not in general of so permanent a right in 
their otfiices, or of such eminent station, as 
the advocates of monasteries. It seems 
to have been an established maxim, at 
least in later times, that the lord could 
not sit personally in judgment, but must 
intrust that function to his bailiff and vas- 
sals.* According to tlie feudal rules, the 
lord's vassals or peers of his court were 
to assist at all its proceedings. " There 
are some places," says Beaumanoir, 
" where the plaintiff decides in judgment, 
and others, where the vassals of the lord 
decide. But even where the bailiff is the 
judge, he ought to advise with the most 
prudent, and determine by their advice ; 
since thus he shall be most secure if an 
appeal is made from his judgment."! 
And indeed the presence of these asses- 
sors was so essential to all territorial 
jurisdiction, that no lord, to whatever 
rights of justice his fief might entitle him, 
was qualified to exercise them, unless he 
had at least two vassals to sit as peers 
in his court. J 

These courts of a feudal barony or 
manor required neither the knowledge of 
positive law, nor the dictates of natural 
sagacity. In all doubtful cases, and es- 
pecially where a crime not capable of 
notorious proof Avas charged, the Trial by 
combat was awarded; and God, as combat, 
they deemed, was the judge. i^ The no- 



* Boutillier, in his Somme Rurale, written near 
the end of the fourteenth century, asserts this pos- 
itively. II convient quilz facent jugier par aultre 
que par eulx, cest a savoir par leurs hommes feu- 
daulx a leur semonce et conjure [?} ou de leur bailifit 
ou lieutenant, et ont ressort a leur souverain, fol. 3. 

t Coutumes de Beauvoisis, p. 11. 

X It was lawful, in such case, to borrow the vas- 
sals of the superior lord. — Thaumassiere sur Beau- 
manoir, p. 375. See Du Cange, v. Pares ; an ex- 
cellent article, and Placitum. 

In England a manor is extinguished, at least as 
to jurisdiction, when there are not two freeholders 
subject to escheat left as suiters to the court-baron. 
Their tenancy must therefore have been created 
before the statute of Quia emptores, 18 Edw. I. 
(1290), since which no new estate in fee simple can 
be held of the lord, nor, consequently, be liable to 
escheat to him. 

(5> Trial by combat does not seem to have estab- 
lislied itself completely m France till ordeare went 
into disuse, which Charlemagne rather encouraged, 
and which, in his age, the clergy for the most part 
approved. The former species of decision may, 
however, be met with under the first Merovingian 
kings (Greg. Tuion., 1. vii., c. 19 ; 1. x., c. 10), and 
seems to have prevailed in Burgundy. It is estab- 
lished by the laws of the Alemanni or Sw'abians. — 
Baluz., t. i., p. 80. It was always popular in Loin- 
bardy. Luitprand, king of the Lombards, says in 
one of his laws : Incerti sumus de judjcio Dei, et 
quosdam audiviraus per pugnam sine justa causa 
suam causam perdere. Sed propter consuetudinein 
gentis nostrae Langobardorum legem impiam vetaro 



110 



EUROPE DURING THE MIDDLE AGES. 



LCiup, II 



bleman fought on horseback, with all his 
arms of attack and defence ; the plebeian 
on foot, with his ckib and target. The 
same were the Avcapons of the champi- 
ons, to whom women and ecclesiastics 
were permitted to intrust their rights.* 
If the combat was intended to ascertain 
a civil right, the vanquished party of 
course forfeited his claim, and paid a fine. 
If he fought by proxy, the champion was 
liable to have his hand struck off; a reg- 
ulation necessary perliaps to obviate the 
corruption of these hired defenders. In 
criminal cases, the appellant suffered, in 
the event of defeat, the same punishment 
which the law awarded to the offence of 
which he accused his adversary. f Even 
where the cause was more peaceably 
tried, and brought to a regular adjudica- 
tion by the court, an appeal for false 
judgment might indeed be made to the 
suzerain, but it could only be tried by bat- 
tle. J And in this, the appellant, if he 
would impeach the concurrent judgment 
of the court below, was compelled to 
meet successively in combat every one 
of its members ; unless he should van- 
quish them all within the day, his life, if 
he escaped from so numy hazards, was 
forfeited to the law. If fortune or mira- 
cle should make him conqueror in every 
contest, the judges were equally subject 
to death, and their court forfeited their ju- 
risdiction for ever. A less perilous mode 
of appeal was to call the first judge Avho 
pronounced a hostile sentence into the 
field. If the appellant came off victorious 
in this challenge, the decision was re- 
versed, but the court was not impeached.^ 
But for denial of justice, that is, for a re- 
fusal to try his suit, the plaintiff repaired 
to the court of the next superior lord, and 
supported his appeal by testimony. || Yet, 

non possiimus. — Muratori, Script. Reriim Italica- 
rum.t. ii., p. C5. Otho II. established it in all dis- 
putes concerning real property; and there is a fa- 
mous case, where the right of representation, or 
preference of the son of a deceased elder child to 
his uncle in succession to his grandfather's estate, 
was settled by this test. 

* For the ceremonies of trial by combat, see 
Houard, Anciennes Loix Francoises, t. i., p. 264. 
Velly, I. VI., p. 106. Recueil des Historiens.t. xi., 
preface, p. 189. Du Cange, v. Duellum. The 
great original authorities are the Assises de Jeru- 
salem, c. 104, and Beaumanoir, c. 31. 

t Beaumanoir, p. 315. 

j Idem, c. 61. In England the appeal for false 
judgment to the king's court was not tried by battle. 
— Glanvil, 1. xii., c. 7. 

() Idem, c. 61. 

II Id., p. 315. The practice was to challenge the 
second witness, since the testimony of one was in- 
sufficient. But this must be done before he com- 
pletes his oath, says Beaumanoir, for after he has 
been sworn, he must be heard and believed, p. 316. 



even here, the witnesses might be defied, 
and the pure stream of justice turned at 
once into the torrent of barbarous con- 
test.* 

Such was the judicial system of France, 
when St. Louis enacted that great Estabiish- 
code which bears the name of his menis of 
Establishments. The rules of *'• ^°""- 
civil and criminal procedure, as well as 
the principles of legal decisions, are there 
laid down with nuich detail. Ihit that 
incomparable prince, unable to overtlirow 
the judicial combat, confined himself to 
discouraging it by the example of a wiser 
jurisprudence. It was abolished through- 
out the royal domains. The bailiffs and 
seneschals who rendered justice to the 
king's inuuediate subjects, were bound to 
follow his own laws. lie not only re- 
ceived appeals from their sentences in 
his own court of peers, but listened to 
all complaints with a kind of patriarchal 
simplicity. " Many times," says Joinville, 
" I have seen the good saint, after hearing 
mass in the summer season, lay himself 
at the foot of an oak in the wood of 
Vincennes, and make us all sit round 
him ; when those who would came and 
spake to him, without let of any ofiicer, 

No one was boimd, as we may well believe, to h'e 
a witness for another, in cases where such an ap- 
peal might be made from his testimony. 

* Mably is certainly mistaken in his opinion, that 
appeals for denial of justice were not older than 
the reign of Philip Augustus. — (Observations sur 
I'Hist. de F., 1. iii., c. 3.) Before this time the vas- 
sal's remedy, he thinks, was to make war upon his 
lord. And this may probably have been frequently 
practised. Indeed it is permitted, as we have seen, 
Ijy the code of .St. Louis. But those who were not 
strong enough to adopt this dangerous means of 
redress, would surely avail themselves of the as- 
sistance of the suzerain, which in general would be 
readily aflbrded. We find several instances of the 
king's interference for the redress of injuries, in 
Suger's life of Louis VI. That active and spirited 
prince, with the assistance of his illustrious biogra- 
pher, recovered a great part of the royal authority, 
which had been reduced to the lowest ebb in the 
long and slothful reign of his father, Philip I. One 
passage, especially, contains a clear evidence of 
the appeal for denial of justice, and consequently 
refutes Mably's opinion. In 1105, the inhabitants 
of St. Severe, in Bcrri, complain of their lord 
Humhald, and request the king aut ad exequendam 
justitiam cogere, aut jure pro injuria castrum lege 
Salica amittere. I quote from the preface to the 
fourteenth volume of the Recueil des Historiens, p. 
44. It may be noticed by the way, that lex Salica 
is here used for the feudal customs; in which 
sense I believe it not unfrequently occurs. Many 
proofs might be brought of the interposition of both 
Louis VI. and VII. in the disputes between their 
barons and arriere vassals. Thus the war between 
the latter and Henry II. of England, in 1166, was 
occasioned by his entertaining a complaint from the 
Count of Auvergne, without waiting for the decis- 
ion of Henry, as Duke of Guienne. — Velly, t. iii., p. 
190. Lyttleton's Henry II., vol.ii.,p. 448. Recu- 
eil des Historiens, ubi supra, p. 49. 



Pakt 11] 



FEUDAL SYSTEM. 



in 



and he would ask aloud if there were any 
present who had suits ; and when they 
appeared, would bid two of his bailifi's 
determine their cause upon the spot."* 

The influence of this new jurisprudence 
established by St. Louis, combined with 
the great enhancements of the royal pre- 
rogatives in every other respect, produ- 
ced a rapid change in the legal adminis- 
tration of France. Tliough trial by com- 
bat occupies a considerable space in the 
work of Eeaumanoir, written under Phil- 
ip the Bold, it was already much limited. 
Appeals for false judgment might some- 
times be tried, as he expresses it, par erre- 
meiis de plait, that is, 1 presume, where 
the alleged error of the court below was 
in matter of law. P'or Avager of battle 
was chiefly intended to ascertain contro- 
verted facts. t So where the suzerain 
saw clearly that the judgment of the in- 
ferior court was right, he ought not to 
permit the combat. Or if the plaintiff, 
even in the first instance, could produce 
a record or a written obligation ; or if the 
fact before the court was notorious, there 
Avas no room for battle. :j: It would be a 
hard thing, says Beaumanoir, that if one 
had killed my near relation in open day, 
before many credible persons, I should be 
compelled to fight in order to prove his 
death. This reflection is the dictate of 
common sense, and shows that the pre- 
judice in favour of judicial combat was 
dying away. In the Assises de Jerusa- 
lem, a monument of customs two hun- 
dred years earlier than the age of Beau- 
manoir, we find little mention of any 
other mode of decision. The compiler 
of that book thinks it would be very in- 
jurious, if no wager of battle were to be 
allowed against witnesses in causes af- 
fecting succession ; since otherwise ev- 
ery right heir might be disinherited, as it 
would be easy to find two persons who 
would perjure themselves for money, if 
they had no fear of being challenged for 
their testimony.^ This passage indicates 
the real cause of preserving the judicial 
combat ; systematic perjury in witness- 
es, and want of legal discrimination in 
judges. 

It was, in all civil suits, at the discre- 
tion of the litigant parties, to adopt the 
law of the Establishments instead of re- 
sorting to combat. II As gentler manners 
prevailed, especially among those who 
did not make arms their profession, the 
wisdom and equity of the new code were 
naturally preferred. The superstition 

* Collection des Memoires, t. i., p. 25. 

-|- Beaumanoir, p. 22. J Id., p. 314. 

^ C 167. II Beaumanoir, p. 309. 



which had originally led to the latter lost 
its weight through experience and the 
uniform opposition of the clergy. The 
same superiority of just and settled rules 
over fortune and violence, which had for- 
warded the encroachments of the eccle- 
siastical courts, was now manifested in 
those of the king. Philip Augustus, by a 
famous ordinance in 1190, first establish- 
ed royal courts of justice, held by the 
officers called bailiffs or seneschals, who 
acted as the king's lieutenants in his do- 
mains.* Every barony, as it became re- 
united to the crown, was subjected to the 
jurisdiction of one of these oflicers, and 
took the name of a bailliage or a senes- 
chaussee ; the former name prevailing 
most in the northern, the latter in the 
southern provinces. The vassals wliose 
lands depended upon, or, in feudal lan- 
guage, moved from the superiority of this 
fief, were obliged to submit to the ressort 
or supreme appellant jurisdiction of the 
royal court established in it.f This be- 
gan rapidly to encroach upon the feudal 
rights of justice. In a variety of cases, 
termed royal, the territorial court was 
pronounced incompetent ; they were re- 
served for the judges of the 
crown; and, in every case, un- ^a7s^a,|J'^"' 
less the defendant excepted to prosress of 
the jurisdiction, the royal court J,'"'''' J""*' 
might take cognizance of a suit, 
and decide it in exclusion of the feudal 
judicature. J The nature of cases reserv- 
ed under the name of royal was kept in 
studied ambiguity, under cover of which 
the judges of the crown perpetually strove 
to multiply them. Louis X., when re- 
quested by the barons of Champagne to 
explain what was meant by royal causes, 
gave this mysterious definition : Every 
thing which by right or custom ought ex- 
clusively to come under the cognizance 
of a sovereign prince.^ Vassals were 
permitted to complain in the first instance 
to the king's court, of injuries committed 
by their lords. These rapid and violent 
encroachments left the nobility no alter- 
native but armed combinations to support 
their remonstrances. Philip the Fair be- 
queathed to his successor the task of ap- 
peasing a storm which his own adminis- 
tration had excited. Leagues were form- 
ed in most of the northern provinces for 
the redress of grievances, in which the 
third estate, oppressed by taxation, uni- 

* Ordonnances des Rois, t. i., p. 18. 

+ Du Cange, v. Ballivi. M^m. de I'Acad. des In- 
scriptions, t. XXX., p. 603. Mably, 1. iv., c. 4. Bou- 
lainvilliers, t. ii., p. 22. 

t Mably, Boulainvilliers. Montlosier, 1. 1., p. 101 

^ Ordonnances des Kois, p. 000. 



112 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II 



ted with the vassals, whose feudal privi- 
leges had been infringed. Separate char- 
ters were granted to each of these con- 
federacies by Lonis Ilutin, Avhich con- 
tain many remedial provisions against 
the grosser violations of ancient rights, 
thougli the crown persisted in restrain- 
ing territorial jurisdictions.* Appeals be- 
came more conmion for false judgment, 
as well as denial of right ; and in neither 
was the combat permitted. It was still, 
however, preserved in accusations of hei- 
nous crimes, unsupported by any testi- 
mony but that of the prosecutor, and was 
never abolished by any positive law, ei- 
ther in France or England. But instan- 
ces of its occurrence are not frequent 
even in the fourteenth century ; and one 
of these, rather remarkable in its circum- 
stances, must have had a tendency to ex- 
plode tlie remaining superstition which 
had preserved this mode of decision. f 

The supreme council, or court of peers. 
Royal coun- to whose deliberative functions 
cii, or court I have already adverted, was 
ofpeers. g^jg^ ^j^g great judicial tribu- 
nal of the French crown from the acces- 
sion of Hugh Capet. By this alone the 
barons of France, or tenants in chief of 
the king, could be judged. To this court 
appeals for denials of justice were refer- 
red. It was originally composed, as has 
been observed, of tlie feudal vassals, eo- 
equals of those who were to be tried by 
it; and also of the household officers, 
whose right of concurrence, however 
anomalous, was extremely ancient. J But 
after the business of the court came to 

* Hoc perpetuo prohibemus edicto, ne subditi, 
seu justiciabiles praelatorum aut baronum nostro- 
rum aut aliorum subjectorum nostrorum, trahan- 
tur in causam coram nostris officialibus, nee eoruin 
causae, nisi in casu ressorti, in nostris curiis audian- 
tur, vel in alio casu ad nos pertinenti. — Ordonnan- 
ces des Rois, t. i., p. 3G2. This ordinance is of 
Philip the Fair, in 1302 ; but those passed under 
Louis Hutin are to the same effect. They may be 
read at length in the Ordonnances des Rois ; or 
abridged by Boulainvilliers, t. ii., p. 94. 

t Philip IV. restricted trial by combat to cases 
where four conditions were united. The crime 
must be capital : Its commission certain : The ac- 
cused greatly suspected : And no proof to be ob- 
tained by witnesses. Under these limitations, ix 
at least some of them, for it appears that they were 
not all regarded, instances occur for some cen- 
turies. 

See the singular story of Carouges and Le Gris, 
to which 1 allude in the text. — Villaret, t. xi.,p.4I2. 
Trial by combat was allowed in Scotland exactly 
under the same conditions as in France. — Pinker- 
ton's Hist, of Scotl., vol. i., p. C6. 

t This court had always, it must be owned, a 
pretty considerable authority over some of the 
royal vassals. Even in Robert's reign, the Count 
of Anjou and another nobleman of less importance 
were summoned before it. — Recueil des Historiens, 
1. 1., p. 473. 476. 



increase through the multiplicity of ap- 
peals, especially from the baihffs estab- 
lished by Philip Augustus in the royal 
domains, the barons found neither leisure 
nor capacity for the ordinary administra- 
tion of justice, and reserved their attend- 
ance for occasions where some of tlieir 
own orders were implicated in a criminal 
process. St Louis, anxious for regular- 
ity and enlightened decisions, cours Pi6 
made a considerable alteration mtires. 
by introducing some counsellors of infe- 
rior rank, chiefly ecclesiastics, as advi- 
sers of the court, though, as is supposed, 
without any decisive sullYage. The court 
now became known by the name of par- 
liament. Registers of its proceedings 
were kept, of which the earliest extant 
are of the year 1-254. It was still per- 
haps in some degree ambulatory; but by 
far the greater part of its sessions in the 
thirteenth century were at Paris. The 
counsellors nominated by the king, some 
of them clerks, others of noble rank, but 
not peers of the ancient baronage, ac- 
quired insensibly a right of suffrage.* 

An ordinance of Philip the Fair in 1302 
is generally supposed to have Parliament 
fixed the seat of parliament at or Paris. 
Paris, as well as altered its constituent 
parts. t Perhaps a series of progressive 
changes has been referred to a single 
epoch. But whether by virtue of this 
ordinance, or of more gradual events, the 
character of the whole feudal court was 
nearly obliterated in that of the parlia- 
ment of Paris. A systematic tribunal 
took the place of a loose aristocratic as- 
sembly. It was to hold two sittings in 
the year, each of two months' duration ; 
it was composed of two prelates, two 
counts, tliirteen clerks, and as many lay- 
men. Great changes were made after- 
ward in this constitution. The nobility, 
who originally sat there, grew weary of 
an attendance which detained them from 
war and from their favourite pursuits at 
home. The bishops were dismissed to 
their necessary residence upon obiigatinna 
their sees.J As they withdrew, of a vassal, 
that class of regular lawyers, original- 

♦ Boulainvilliers, t. ii., p. 29, 44. Mably, 1. iv., 
c. 2. Encyclopedie, Art. Parlement. Mem. de 
I'Acad. des Inscript., t. xxx., p. 603. The great 
difficulty I have found in this investigation will 
plead my excuse if errors are detected. 

t Pasquier (Recherches de la France, 1. ii., c. 3) 
publi.^hed this ordinance, which, indeed, as the ed- 
itor of Ordonnances des Rois, t. i.,p. 547, observes, 
is no ordinance, but a regulation for the execution 
of one previously made ; nor does it establish the 
residence of the Parliament of Paris. 

J Velly, Hist, de France, t. vii., p. .303, and En- 
cyclopedie, Art. Parlement, are the best authorities 
1 have found. There may very possibly be supe- 



Part II.] 



FEUDAL SYSTEM. 



113 



ly employed, as it appears, in the pre- 
paratory business without any decisive 
voice, came forward to the higher places, 
and establislied a complicated and tedi- 
ous system of procedure, which was al- 
ways characteristic of French jurispru- 
dence. They introduced at the same 
time a new theory of absolute power 
and unlimited obedience. All feudal 
Decline of privileges were treated as en- 
the feudal croachmcnts on the imprescrip- 
eystem. ^-^^j^ rights of monarchy. With 
the natural bias of lawyers in favour of 
prerogative conspired that of the clergy, 
who rted to the king for refuge against 
the tyranny of the barons. In the civil 
and canon laws a system of political 
maxims was found, very uncongenial to 
the feudal customs. The F'rench law- 
yers of the fourteenth and fifteenth cen- 
turies frequently gave their king the title 
of emperor, and treated disobedience to 
him as sacrilege.* 

But among these lawyers, although the 
general tenants of the crown by barony 
ceased to appear, there still continued to 
sit a more eminent body, the lay and 
Peers of spiritual peers of France, repre- 
Franee. sentatives, as it were, of that an- 
cient baronial aristocracy. It is a very con- 
troverted question at what time this exclu- 
sive dignity of peerage, a word obviously 
applicable by the feudal law to all persons 
coequal in degree of tenure, was reserv- 
ed to twelve vassals. At the coronation 
of Philip Augustus, in 1179, we first per- 
ceive the six great feudatories, dukes of 
Burgundy, Normandy, Guienne, counts of 
Toulouse, Flanders, Champagne, distin- 
guished by the ofllces they performed in 
that ceremony. It was natural indeed 
that, by their princely splendour and im- 
portance, they should eclipse such petty 
lords as Bourbon and Coucy, however 
equal in quality of tenure. During the 
reign of Philip Augustus, six ecclesiasti- 
cal peers, the duke-bishops of Rheims, 
Laon, and Langres, the count-bishops of 
Beauvais, Chalons, and Noyon, Avere 
added, as a sort of parallel or counter- 
poise.! Their precedence does not, how- 
ever, appear to have carried with it any 
other privilege, at least in judicature, 
than other barons enjoyed. But their 
pre-eminence being fully confirmed, Phil- 
ip the Fair set the precedent of augment- 
ing their original number,^ by conferring 
the dignity of peerage on the Duke of 

rior works on this branch of the French constitu- 
tion, which have not fallen into my hands. 

* Mably, 1. iv., c. 2, note 10. 

t Velly, t. ii., p. 287 ; t. lii., p. 221 ; t. iv., p. 41. 

t Ibid., t. vii., p. 97. 
H 



Britany and the Count of Artois. Oth- 
er creations took place subsequently; but 
they were confined, during the period 
comprised in this work, to princes of the 
royal blood. The peers were constant 
members of the parliament, from which 
other vassals holding in chief were nev- 
er perhaps excluded by law, but their at- 
tendance was rare in the fourteenth cen- 
tury, and soon afterward ceased altogeth- 
er.* 

A judicial body composed of the great- 
est nobles in France, as well as pr(,_rgj,g „{■ 
of learned and eminent law- the jurisdic- 
yers, must naturally have soon nonofihe 
become politically important. P*"''^'"^"'- 
Notwithstanding their disposition to en- 
hance every royal prerogative, as op- 
posed to feudal privileges, the parliament 
was not disinclined to see its own pro- 
tection invoked by the subject. It ap- 
pears by an ordinance of Charles V., in 
1371, that the nobihty of Languedoc had 
appealed to the parliament of Paris 
against a tax imposed by the king's au- 
thority; and this, at a time when the 
French constitution did not recognise the 
levying of money without consent of the 
States Genera], must have been a just 
ground of appeal, though the present ordi- 
nance annuls and overturns it.f During 
the tempests of Charles VI. 's unhappy 
reign, the parliament acquired a more 
decided authority, and held, in some de- 
gree, the balance between the contending 
factions of Orleans and Burgundy. This 
influehce was partly owing to one re- 
markable function attributed to the par- 
liament, which raised it much above the 
level of a merely political tribunal,^ and 
has at various times wrought striking 
effects in the French monarchy. 

The few ordinances enacted by kings 
of France in the twelfth and d , , h- 
thirteenth centuries were gen- enregis^tered 
erally by the advice of their i" pariia- 
royal council, in which prob- "*"'• 
ably they were solemnly declared as well 
as agreed upon. But after the gradual 
revolution of government, which took 
away from the feudal aristocracy all con- 
trol over the king's edicts, and substi- 
tuted a new magistracy for the ancient 
baronial court, these legislative ordi- 
nances were commonly drawn up by the 
interior council, or Avhat we may call the 
ministry. They w,ere in some instances 
promulgated by the king in parliament. 
Others were sent thither for registration, 
or entry upon their records. This for- 
mality was by degrees, if not from the 

* Encyclop6die, Art Parlement, p. 6. 
t Mably, 1. v., c. 5, note 5. 



xl4 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IL 



beginning, deemed essential to render 
them authentic and notorious, and there- 
fore indirectly gave them the sanction 
and validity of a law.* Such, at least, 
appears to have been the received doc- 
trine before the end of the fourteenth 
century. It has been contended by 
Mably among other writers, that at so 
early an epoch, the parHament of Paris 
did not enjoy, nor even claim to itself, that 
anomalous right of judging the expedi- 
ency of edicts proceeding from the king, 
which afterward so remarkably modified 
the absoluteness of his power. In the 
fifteenth century, however, it certainly 
manifested pretensions of this nature : 
first, by registering ordinances in such a 
manner as to testify its own unwilling- 
ness and disapprobation, of which one in- 
stance occurs as early as 1418, and an- 
other in 1443 ; and, afterward, by remon- 
strating against, and delaying the regis- 
tration of laws, which it deemed inimical 
to the public interest. A conspicuous 
proof of this spirit was given in their op- 
position to Louis XI. when repealing the 
Pragmatic Sanction of his father ; an or- 
dinance essential, in their opinion, to the 
liberties of the GaUican church. In this 
instance they ultimately yielded ; but at 
another time they persisted in a refusal 
to enregister letters containing an aliena- 
tion of the royal domain.f 

The counsellors of parliament were 
Counsellors of originally appointed by the 
parliament ap- king: and they were even 

pointed for i j j- ^ • 

life and by Changed accordmg to circum- 
eiection. stances. Charles V. made 

the first alteration, by permitting them to 
fill up vacancies by election ; which usage 
continued during the next reign. Charles 
VII. resumed the nomination of fresh 
members upon vacancies. Louis XI. 
even displaced actual counsellors. But 
in 14G8, from whatever motive, he pub- 
lished a most important ordinance, de- 
claring the presidents and counsellors of 
parliament immoveable, except in case 
of legal forfeiture. I This extraordinary 
measure of conferring independence on 
a body, which had already displayed a 
consciousness of its eminent privilege 
by opposing the registration of his edicts, 
is perhaps to be deemed a proof of that 
short-sightedness as to points of substan- 
tial interest so usually found in crafty 
men. But, be this as it may, there was 
formed in the parliame"nt of Paris an in- 



* Encyclopedie, Art. Parlement. 

•f- Mably, 1. vi,, c. 6, note 19 and 21. Gamier, 
Hist, de France, t. xvii., p. 219, 380. 

t Villaret, t. xiv., p. 231. Encyclopedie, Art. 
Parlement. 



dependent power not emanating from the 
royal will, nor liable, except through 
force, to be destroyed by it ; which, in 
later times, became almost the sole de- 
positary, if not of what we should call 
the love of freedom, yet of public spirit 
and attachment to justice. France, so 
fertile of great men in the sixteenth and 
seventeenth centuries, might better spare, 
perhaps, from her annals any class and 
description of them than her lawyers. 
Doubtless the parliament of Paris, with 
its prejudices and narrow views, its high 
notions of loyal obedience, so strangely 
mixed up with remonstrances and resist- 
ance, its anomalous privilege of objecting 
to edicts, hardly appi'oved by the nation 
who did not participate in it, and over- 
turned with facihty by the king, when- 
ever he thought fit to exert the sinews of 
his prerogative, was but an inadequate 
substitute for that co-ordinate sover- 
eignty, that equal concurrence of natural 
representatives in legislation, which has 
long been the exclusive pride of our gov- 
ernment, and to which the States Gen- 
eral of France, in their best days, had 
never aspired. No man of sane under- 
standing would desire to revive institu- 
tions both uncongenial to modern opin- 
ions and to the natural order of society. 
Yet the name of the parliament of Paris 
must ever be respectable. It exhibited, 
upon various occasions, virtues from 
which human esteem is as inseparable as 
the shadow from the substance ; a severe 
adherence to principles, an unaccommo- 
dating sincerity, individual disinterested- 
ness and consistency. Whether indeed 
these qualities have been so generally 
characteristic of the French people as to 
afford no peculiar commendation to the 
parliament of Paris, it is rather for the 
observer of the present day than the his- 
torians of past times to decide.* 



* The province of Languedoc, with its depend- 
ances of Quercy and Rouergue, having belonged 
almost in full sovereignty to the counts of Tou- 
louse, was not perhaps subject to the feudal resort, 
or appellant jurisdiction of nny tribunal at Paris. 
Philip the Bold, after its reunion to the crown, es- 
tablished the parliament of Toulouse, a tribunal 
without appeal, in 1280. This was however sus- 
pended from 1291 to 1443, during which interval 
the parliament of Paris exercised an appellant 
jurisdiction over Languedoc. — Vaissette, Hist, de 
Lang., t. iv., p. 60, 71, 524. Sovereign courts or 
parliaments were established by Charles VII. at 
Grenoble for Dauphine, and by Louis XI. at Bor- 
deaux and Dijon for Guienne and Burgundy. The 
parliament of Rouen is not so ancient. These in- 
stitutions rather diminished the resort of the par- 
liament of Paris, which had extended over Bur 
gundy, and, in time of peace, over Guienne. 

A work has appeared within a very few years, 
which throws an abundant light on the judicial 
system, and indeed on the whole civil policy of 



Part II.] 



FEUDAL SYSTEM. 



115 



The principal causes that operated in 
causes of subverting the feudal system 
the decline may be comprehended under 
of the feu- three distinct heads ; the in- 

dal system. • /. , i „ 

creasnig power of the crown, 
the elevation of the lower ranks, and the 
decay of the feudal principle. 

It has been ray object in the last pages 
Acquis!- ^^ poiut out the acquisitions of 
tions of power by the crown of France 
power by j^ respcct of legislative and ju- 
tne crown, j- • i -i -4 mi • i 

dicial authority. The prmcipal 

augmentations of its domain have been 
Augmenta- historically mentioned in the 
tionofthe last chapter; but the subject 
domain. jj^^y ]jgj.g require further notice. 
The French kings naturally acted upon a 
system, in order to recover those pos- 
sessions which the improvidence or ne- 
cessities of the Carlovingian race had 
suffered almost to fall away from the 
monarchy. This course, pursued with 
tolerable steadiness for two or three cen- 
turies, restored their effective power. 
By escheat or forfeiture, by bequest or 
succession, a number of fiefs were mer- 
ged in their increasing domain.* It was 

France, as well as other countries, during the mid- 
dle ages. I allude to L'Esprit. Origine et Progres 
des Institutions judiciaires de^ principaux Pays de 
I'Europe, by M. Meyer, of .Imslerdam; especially 
the first and third voluni's. It would have been 
fortunate had its publication preceded that of the 
first edition of the present work ; as I might have 
rendered this chapter on the feudal system in many 
respects more ppispicuous and correct. As it is, 
without availini; myself of M. Meyer's learning and 
acuteness to illustrate the obscurity of these re- 
searches, or discussing the few questions upon 
which I might venture, with deference, to adhere 
to another opinion, neither of which could con- 
veniently be done on the present occas'ion, I shall 
content myself with this general reference to a per- 
formance of singular diligence and ability, which 
no student of these antiquities should neglect. In 
all essential points I am happy not to perceive that 
M. Meyer's views of the middle ages are far differ- 
ent from my own. — Note to the fourth edit. 

* The word domain is calculated, by a seeming 
ambiguity, to perplex the reader of French history. 
In its primary sense, the domain or demesne (do- 
minicum) of any proprietor was confined to the 
lands in his immediate occupation ; excluding 
those of which his tenants, whether in fief or vil- 
lanage, whether for a certain estate or at will, had 
an actual possession, or, in our law-language, per- 
nancy of the profits. Thus the compilers of 
Domesday-Book distinguish, in every manor, the 
lai ds held by the lord in demesne from those occu- 

f)ie d by his villeins or other tenants. And in Eng- 
an J, the word, if not technically, yet in use is still 
confined to this sense. But in a secondary accep- 
tation, more usual in France, the domain compre- 
hended all lands for which rent was paid (censives), 
and which contributed to the regular annual rev- 
enue of the proprietor. The great distinction was 
between lands in demesne and these in fief. A 
grant of territory, whether by the king or another 
lord, comprising as v^'ell domanial estates and tribu- 
tary towns as feudal superiorities, was expressed 
H 2 



part of their policy to obtam possession 
of arriere-fiefs, and thus to become ten- 
ants of their own barons. In such cases 
the king was obliged, by the feudal du- 
ties, to perform homage, by proxy, to his 
subjects, and engage himself to the ser- 
vice of his fief. But, for every political 
purpose, it is evident that the lord could 
have no command over so formidable a 
vassal.* 

The reunion of so many fiefs was at- 
tempted to be secured by a legal princi- 
ple, that the domain was inahenable and 
imprescriptible. This became at length a 
fundamental maxim in the law of France. 
But it does not seem to be much older 
than the reign of Philip V., who, in 1318, 
revoked the alienations of his predeces- 
sors, nor was it thoroughly established, 
even in theory, till the fifteenth century. f 
Ahenations, however, were certainly very 
repugnant to the policy of Philip Augus- 
tus and St. Louis. But there was one 
species of infeudation, so consonant to 
ancient usage and prejudice, that it could 
not be avoided upon any suggestions of 
policy ; this was the investiture of young- 
er princes of the blood with considera- 
ble territorial appanages. It is remarka- 
ble that the epoch of appanages on so 
great a scale was the reign of St. Louis, 
whose efforts were constantly directed 
against feudal independence. Yet he in- 
vested his brothers with the counties of 
Poitou, Anjou, and Artois, and his sons 
with those of Clermont and Alen5on 



to convey " in dominico quod est in dominico, et in 
feodo quod est in feodo." Since, therefore, fiefs, 
even those of the vavassors or inferior tenantry, 
were not part of the lord's domain, there is, as I 
said, an apparent ambiguity in the language of his- 
torians who speak of the reunion of provinces to 
the royal domain. This ambiguity, however, is 
rather apparent than real. When the dutchy of 
Normandy, for example, is said to have been uni- 
ted by Philip Augustus to his domain, we are not, 
of course, to suppose that the soil of that province 
became the private estate of the crown. It con- 
tinued, as before, in the possession of the Norman 
barons and their sub-vassals, who had held their 
estates of the dukes. But it is meant only that 
the King of France stood exactly in the place of 
the Duke of Normandy, with the same rights of 
possession over lands absolutely in demesne, of 
rents and customary payments from the burgesses 
of towns and tenants in roture or villanage, and of 
feudal services from the military vassals. The im- 
mediate superiority, and the immediate resort or 
jurisdiction over these, devolved to the crown; 
and thus the dutchy of Normandy, considered as 
a fief, was reunited, or, more properly, merged in 
the royal domain, though a very small part of the 
territory might become truly domanial. 

* See a memori.il on the acquisition of arriere- 
fiefs by the kings of France, in Mem. de I'Acad. 
des Inscript., t. 1, by M. Dacier. 

t Preface au 15ine tome des Ordonnancea, par 
M. de Pastoret, 



116 



EUROPE DURING THE MIDDLE AGE3. 



[Chap. U 



This practice, in later times, produced 
very mischievous consequences. 

Under a second class of events that 
contributed to destroy the spirit of the 
feudal system, we may reckon the aboli- 
tion of villanage ; the increase of com- 
merce, and consequent opulence of mer- 
chants and artisans ; and especially the 
institutions of free cities and boroughs. 
This is one of the most important and 
interesting steps in the progress of soci- 
ety during the middle ages, and deserves 
particular consideration. 

The provincial cities under the Roman 
Free and empire enjoyed, as is well known, 
chartered a municipal magistracy and the 
towns, nght of internal regulation. It 
would not have been repugnant, perhaps, 
to the spirit of the Frank and Gothic con- 
querors, to have left them in possession 
of these privileges. But there seeiqs no 
satisfactory proof that they were pre- 
served either in France or in Italy ;* or, 
if they existed at all, they were swept 
away, in the former country, during the 
confusion of the ninth century, which 
ended in the establishment of the feudal 
system. Every town, except within the 
royal domains, was subject to some lord. 
In episcopal cities the bishop possessed 
a considerable authority ; and in many 
there was a class of resident nobility. 
It is probable that the proportion of free- 
men was always greater than in the 
country; some sort of retail trade, and 
even of manufacture, must have existed 
in the rudest of the middle ages, and con- 
sequently some little capital was required 
for their exercise. Nor was it so easy to 
oppress a collected body, as the scatter- 
ed and dispirited cultivators of the soil. 
Probably therefore the condition of the 
towns was at all times by far the more 
tolerable servitude ; and they might en- 
joy several immunities by usage, before 
the date of those charters which gave 
them sanction. In Provence, where the 
feudal star shone with a less powerful 
ray, the cities, though not independently 
governed, were more flourishing than the 
French.f Marseilles, in the beginning of 



* M. de Brequigny says that Lyons and Rheims 
can trace their own municipal government some 
centuries higher than the establishment of com- 
munes by Louis VI. The former city, which indeed 
was not French at that time, never had a charter 
of incorporation. — Ordonnances des Rois, t. xi., 
preface, p. 4. This preface contains an excellent 
account of the origin and privileges of chartered 
towns in France. 

t There were more freemen in Provence, says 
an historian of the country, than in any other part 
of France ; and the revolutions of the monarchy 
being less felt than elsewhere, our towns naturally 



the twelfth age, was able to equip pow- 
erful navies, and to share in the wars of 
Genoa and Pisa against the Saracens of 
Sardinia. 

The earliest charters of community 
granted to towns in France have Earliest 
been commonly referred to the fiiarters. 
time of Louis the Sixth ; though it is not 
improbable that some cities in the south 
had a municipal government by custom, if 
not by grant, at an earlier period.* Noyon, 
St. Quentin, Laon, and Amiens appeared 
to have been the first that received eman- 
cipation at the hands of this prince. f The 

preserved their municipal government. I have 
borrowed this quotation from Hceren, Essai sur 
rinfluence des Croisades, p. 122, to whom I am in- 
debted for other assistance. Vaissette also thinks 
that the inhabitants of towns in Languedoc were 
personally free in the tenth century ; though those 
of the country were in servitude. — Hist, de Lan- 
guedoc, t. ii., p. 111. 

* Ordonnances des Rois, ubi supra, p. 7. These 
charters are as old as 1110, but the precise date is 
unknown. 

+ The Benedictine historians of Languedoc are 
of Opinion that the city of Nismes had municipal 
magisiiates even in the middle of the tenth centu- 
ry, t. ii., p. 111. However this maybe, the citizens 
of Narbonne qre expressly mentioned in 1080.— Ap- 
pendix, p. 308. The burgesses of Carcassone appear 
by name in a charter of 1107, p. 515. In one of 
1131, the consuls of Beziers are mentioned; they 
existed therefore previously, p. 409, and Appen- 
dix, p. 959. The magistrates of St. Antonm en 
Rouergue are named in 1\36 ; those of Montpelier 
in 1142; of Narbonne in lUS; and of St. Gilles in 
1149, pp. 515, 432, 442, 464. The capitouls of 
Toulouse pretend to an extravagant antiquity ; but 
were in fact established by Alfonso, count of Tou- 
louse, who died in 1 148. In 1 132, Raymond V. con- 
firmed the regulations made by the common coun- 
cil of Toulouse, which became the foundation of 
the custom^ of that city, p. 472. 

If we may trust altogether to the Assises de Je- 
rusalem in their present shape, the court of bur- 
gesses having jurisdiction over persons of that rank 
was instituted by Godfrey of Bouillon, who died 
1100. — Ass. de Jerus.,c. 2. This would be even ear- 
lier than the charter of London, granted by Henry 
I. Lord Lyttleton goes so far as to call it " certain, 
that in England many cities and towns were bod- 
ies corporate and communities long before the alter- 
ation introduced into France by fhe charters of 
Louis le Gros." — Hist, of Henry II., vol. iv., p. 29. 
But this position, as I shall more particularly show 
in another place, is not borne out by any good 
authority, if it extends to any internal jurisdiction, 
and management of their own police ; whereof, 
except in the instance of London, we have no 
proof before the reign of Henry II. 

But the incorporation of communities seems to 
have been decidedly earlier in Spain than in any 
other country. Alfonso V., in 1020, granted a char- 
ter to Leon, which is said to mention the common 
council of that city m terms that show it to be an 
established institution. During the latter part of 
the eleventh century, as well as in subsequent 
times, such charters are very frequent. — Marina, 
Ensayo Historico-Critico sobre las siete partidas. 
In several instances, we find concessions of smaller 
privileges to towns without any political power. 
Thus Berenger, count of Barcelona, m 1025 con- 



Part II.] 



FEUDAL SYSTEM. 



117 



chief towns in the royal domains were 
successively admitted to the same privi- 
leges during the reigns of Louis VI., Louis 
VII., and Phihp Augustus. This exam- 
ple was gradually followed by the peers 
and other barons ; so that by the end of 
the thirteenth century, the custom had 
Causes of prevailed over all France. It 
granting ' j^^s been sometimes imagined, 
be^found in that the crusades had a mate- 
tbe crusades, rial influence in promoting the 
erecti-on of communities. Those expedi- 
tions would have repaid Europe for the 
prodigality of crimes and miseries which 
attended them, if this notion were found- 
ed in reality. But I confess that in this, 
as in most other respects, their beneficial 
consequences appear to me very much 
exaggerated. The cities of Italy obtain- 
ed their internal liberties by gradual en- 
croachments, and by the concessions of 
the Franconian emperors. Those upon 
the Rhine owed many of their privile- 
ges to the same monarchs, whose cause 
they had espoused in the rebellions of 
Germany. In France, the charters grant- 
ed by Louis the Fat could hardly be con- 
nected with the first crusade, in which 
the crown had taken no part, and were 
long prior to the second. It was not 
till fifty years afterward that the barons 
seem to have trod in his steps by granting 
charters to their vassals, and these do 
not appear to have been particularly re- 
lated in time to any of the crusades. 
Still less can the corporations, erected 
by Henry II. in England, be ascribed to 
these holy wars, in whicli our country 
had hitherto taken no considerable share. 
The establishment of chartered towns 
nor in deiib- ^^ France has also been ascri- 
erate poi- bed to deliberate policy. " Lou- 
'•^y- is the Gross," says Robertson, 

firms to the inhabitants of that city all the franchi- 
ses which they already possess. These seem how- 
ever to be confined to exemption from paying rent, 
and from any jurisdiction below that of an officer de- 
puted by the count. — De Marca, Marca Hispanica, 
p. 1038. Another grant occurs in the same volume, 
p. 909, from the Bishop of Barcelona in favour of 
a town of his diocess. By some inattention, Rob- 
ertson has quoted these charters as granted to " two 
villages in the county of Rousillon." — Hist. Charles 
v., note 16. The charters of Tortosa and Lerida 
in 1149 do not contain any grant of jurisdiction, p. 
1303. 

The corporate towns in France and England 
always enjoyed fuller privileges than these Cata- 
lonian charters impart. The essential character- 
istics of a commune, according to M. Brequigny, 
were : — an association confirmed by charter ; a 
code of fixed sanctioned customs; and a set of 
privileges, always including municipal or elective 
government. — Ordonnances, ubi supra, p. 3. A 
distmction ought however to be pointed out, which 
is rather liable to elude observation, between com- 



"in order to create some power that 
might counterbalance those potent vas- 
sals who controlled or gave law to the 
crown, first adopted the plan of confer- 
ring new iflrivileges on the towns situa- 
ted within his own domain." Yet one 
does not immediately perceive what 
strength the king could acquire by grant- 
ing these extensive privil ^ges within his 
own domains, if the great vassals were 
only weakened, as he asserts afterward, 
by following his example. In what 
sense, besides, can it be meant, that 
Noyon or Amiens, by obtaining certain 
franchises, became a power that could 
counterbalance the Duke of Normandy 
or Count of Champagne? It is more 
natural to impute this measure, both in 
the king and his barons, if their pecunia- 
ry exigencies ; for we could hardly doubt 
that their concessions were sold at the 
highest price, even if the existing char- 
ters did not exhibit the fullest proof of 
it.* It is obvious, however, that the 
coarser methods of rapine must have 
grown obsolete, and the rights of the in- 
habitants of towns to property establish- 
ed, before they could enter into any com- 
pact with their lord for the purchase of 
liberty. Guibert, abbot of St. No- circum- 
gent, near Laon, relates the estab- stances 
lishment of a community in that fng"^^ 
city with circumstances that, in the treaty of 
main, might probably occur in any ^^''"• 
other place. Continual acts of violence 
and robbery having been committed, 
which there was no police adequate to 
prevent, the clergy and principal inhabi- 
tants agreed to enfranchise the populace 
for a sum of money, and to bind the 
whole society by regulations for general 
security. These conditions were gladly 
accepted ; the money was paid, and the 
leading men swore to maintain the priv- 



munes, or corporate towns, and boroughs (bourge- 
oisies). The main difference was, that in the lat- 
ter there was no elective government, the magis- 
trates being appointed by the king or other supe- 
rior. In the possession of fixed privileges and ex- 
emptions, in the personal liberty of their inhabitants, 
and in the certainty of their legal usages, there 
was no distinction between corporate towns and 
mere boroughs ; and indeed it is agreed that every 
corporate town was a borough, though every bor- 
ough was not a corporation. f The French anti- 
quary quoted above does not trace these inferior 
communities or boroughs higher than the charters 
of Louis VI. But we find the name, and a good 
deal of the substance, in England under William 
the Conqueror, as is manifest from Domesday-Book. 

* Ordonnances des Rois, t. xi., preface, p. 18 et 50. 

t The preface (o the twelfth volume of Ordonnances des 
Rois contains a full account of bozirgenixies, a.s that to 
the eleventh does of roimmines. A great part of it, how- 
ever, is applicable to both species, or rather to the genus 
and the species. — See too that to the fourteenth volume of 
Recueil des Historiens, p. 74. 



118 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IL 



ileges of the inferior freemen. The 
Bishop of Laon, who happened to be ab- 
sent, at first opposed this new institution, 
but was ultimately induced by money to 
take a similar oath ; and the community 
"was confirme by the king.' Unluckily 
for himself, the bishop afterward annull- 
ed the charter; when the inhabitants, in 
despair at seeing themselves reduced to 
servitude, rose and murdered him. This 
was in 1112 ; and Guibert's narrative cer- 
tainly does not support the opinion that 
charters of community proceeded from 
the policy of government. He seems to 
have looked upon them with the jealousy 
of a feudal abbot, and blames the Bishop 
of Amiens for consenting to such an es- 
tablishment in his city, from which, ac- 
cording to Guibert, many evils resulted. 
In his sermons, we are told, this abbot 
used to descant on "those execrable com- 
munities, where serfs, against law and 
justice, withdraw themselves from the 
power of their lords."* 

In some cases they were indebted for 
success to their own courage and love of 
liberty. Oppressed by the exactions of 
their superiors, they had recourse to 
rms, and united themselves in a com- 
mon league confirmed by oath, for the 
sake of redress. One of these associa- 
tions took place at Mans as early as 
1067, and, though it did not produce any 
charter of privileges, is a proof of the 
spirit to which ultimately the superior 
classes were obliged to submit.f Sev- 
eral charters bear witness that this spir- 
it of resistance was justified by oppres- 
sion. Louis VII. frequently declares 
the tyranny exercised over the towns to 
be his motive for enfranchising them. 
Thus the charter of Mantes in 1150 is 
said to be given pro nimia. oppressione 
pauperum: that of Compiegne in 1153, 
propter enormitates clericorum : that of 
Dourlens, granted by the Count of Pon- 
thieu in 1202, propter injurias et moles- 
tias a potentibus terrae burgensibus fre- 
quenter illatas.J 

The privileges which these towns of 
The extent France derived from their char- 
of their ters were surprisingly exten- 
priviieges. gjyg . especially if we do not 
suspect some of them to be merely in 
confirmation of previous usages. They 
were made capable of possessing com- 
mon property, and authorized to use a 
common seal as the symbol of their in- 
corporation. The more oppressive and 

* Hist. Litteraire de la France, t. x., 448. Du 
Cange, voc. Communia. 

t Recueil des Historiens, t. xiv., preface, p. C6. 
j Ordonnances des Rois, t. xi., preface, p. 17. 



ignominious tokens of subjection, such as 
the fine paid to the lord for permission 
to marry their children, were abolished. 
Their payments of rent or tribute were 
limited both in amount and as to the oc- 
casions when they might be demanded : 
and these were levied by assessors of 
their own electing. Some obtained an 
exemption from assisting their lord in 
war ; others were only bound to follow 
him when he personally commanded; 
and almost all limited their service to 
one, or at the utmost very few days. If 
they were persuaded to extend its dura- 
tion, it was, like that of feudal tenants, at 
the cost of their superior. Their cus- 
toms, as to succession and other matters 
of private right, were reduced to certain- 
ty, and, for the most part, laid down in 
the charter of incorporation. And the 
observation of these was secured by the 
most valuable privilege which the char- 
tered towns obtained : that of exemption 
from the jurisdiction, as well of the roy- 
al as the territorial judges. They were 
subject only to that of magistrates, either 
wholly elected by themselves, or in some 
places, with a greater or less participa- 
tion of choice in the lord. They were 
empowered to make special rules, or, as 
we call them, by-laws, so as not to con- 
travene the provisions of their charter or 
the ordinances of the king.* 

It was undoubtedly far from the inten- 
tion of those barons who confer- 
red such immunities upon their ofTree'"'"' 
subjects to relinquish their own towns with 
superiority and rights not ex- ""^^'"K- 
pressly conceded. But a remarkable 
change took place in the beginning of the 
thirteenth century, which affected, in a 
high degree, the feudal constitution of 
France. Towns, distrustful of their lord's 
fidelity, sometimes called in the king as 
guarantee of his engagements. The first 
stage of royal interference led to a more 
extensive measure. Philip Augustus 
granted letters of safeguard to communi- 
ties dependant upon the barons, assuring 
to them his own protection and patron- 
age. f And this was followed up so quick- 
ly by the court, if we believe some wri- 
ters, that in the next reign, Louis VIII. 
pretended to the immediate sovereignty 
over all chartered towns, in exclusion of 
their original lords. J Nothing, perhaps, 



* Ordonnances des Rois, prefaces aux tomes xi. 
et xii. Du Cange, voc. Communia, Hpstis. Car- 
pentier, Suppl. ad Du Cange, v. Hostis. Mably 
Observations sur I'Hist. de France, 1. iii., c. 7. 

+ Mably, ibid. 

% Reputabat civitates omnes suas esse, in quibus 
communias essent. 1 mention this in deference to 
Du Cange, Mably, and others, who assume the 



Part II.] 



FEUDAL SYSTEM. 



119 



had so decisive an effect in subverting the 
feudal aristocracy. The barons perceiv- 
ed too late, that for a price long since 
lavished in prodigal magnificence or use- 
less warfare, they had suffered the source 
of their w^ealth to be diverted, and the 
nerves of their strength to be severed. 
The government prudently respected the 
privileges secured by charter. Philip the 
Long established an officer in all large 
towns to preserve peace by an armed po- 
lice; but, though subject to the orders 
of the crown, he was elected by the bur- 
gesses ; and they took a mutual oath of 
fidelity to each other. Thus shielded un- 
der the king's mantle, they ventured to 
encroach upon the neighbouring lords, 
and to retaliate for the long oppression 
of the commonalty.* Every citizen was 
bound by oath to stand by the common 
cause against all aggressors, and this ob- 
ligation was abundantly fulfilled. In or- 
der to swell their numbers, it became the 
practice to admit all who came to reside 
within their walls to the rights of burgh- 
ership, even though they were villeins, 
appertenant to the soil of a master, from 
whom they had escaped. f Others, hav- 

fact as incontrovertible ; but the passage is only in 
a monkish chronicler, whose authority, were it 
even more explicit, would not weigh much in a 
matter of law. Beaumanoir, however, sixty years 
afterward, lays it down, that no one can erect a 
commune without the king's consent, c. 50, p. 268. 
And this was an unqviestionable maxim in the four- 
teenth century. — Ordonnances, t. xi., p. 29. 

* In the charter of Philip Augustus to the town 
of Roye in Picardy, we read : If any stranger, 
whether noble or villein, commits a wrong against 
the town, the mayor shall summon him to answer 
for it ; and, if he does not obey the summons, the 
mayor and inhabitants may go and destroy his 
house, in which we (the king) will lend them our 
assistance, if the house be too strong for the bur- 
gesses to pull down : except the case of one of our 
•vassals, whose house shall not be destroyed ; but 
he shall not be allowed to enter the town, till he 
has made amends at the discretion of the mayor 
and jurats. — Ordonnances des Rois, t. xi., p. 228. 
This summary process could only, as I conceive, 
be employed, if the house was situated within the 
jurisdiction of the commune. — See charter of 
Crespy, id., p. 253. In other cases, the application 
for redress was to be made in the first instance to 
the lord of the territory wherein the delinquent re- 
sided. But, upon his failing to enforce satisfaction, 
the mayor and jurats might satisfy themselves ; li- 
ceat justitiam quaarere, prout poterunt ; that is, 
might pull down his house, provided they could. 
Mably positively maintains the communes to have 
had the right of levying war, 1. iii., c. 7. And Br4- 
quigny seems to coincide with him. — Ordonnances, 
preface, p. 4C. See also Hist, de Languedoc, t. 
iii., p. 115. The territory of a commune was call- 
ed Fax (p. 185) ; an expressive word. 

t One of the most remarkable privileges of char- 
tered towns was that of conferring freedom on run- 
away serfs, if they were not reclaimed by their 
masters within a certain time. This was a' pretty 
general law. Si quia nativus quiets per unum an- 



ing obtained the same privileges, contin- 
ued to dwell in the country ; but, upon 
any dispute with their lords, called in the 
assistance of their community. Philip 
the Fair, erecting certain communes in 
Languedoc, gave to any who would de- 
clare on oath that he was aggrieved by 
the lord or his officers, the right of being 
admitted a burgess of the next town, upon 
paying one mark of silver to the king, 
and purchasing a tenement of a definite 
value. But the neglect of this condition, 
and several other abuses, are enumerated 
in an instrument of Charles V., redressing 
the complaints made by the nobility and 
rich ecclesiastics of the neighbourhood.* 
In his reign the feudal independence had 
so completely yielded, that the court be- 
gan to give in to a new policy, which was 
ever after pursued ; that of maintaining 
the dignity and privileges of the noble 
class against those attacks which wealth 
and liberty encouraged the plebeians to 
make upon them. 

The maritime towns of the south of 
France entered into separate lyiaritime 
alliances with foreign states ; towns pecu- 
as Narbonne with Genoa in ''g^'^giJI"^^' 
1 166, and Montpelier in the next '"^" '^" " 
century. At the death of Raymond VII., 
Avignon, Aries, and Marseilles affected to 
set up republican governments ; but they 
were soon brought into subjection.! The 
independent character of maritime towns 
was not peculiar to those of the southern 
provinces. Edward II. and Edward III. 
negotiated, and entered into alliances 
with the towns of Flanders, to which 
neither their count, nor the King of 
France were parties. J p]ven so late as the 
reign of Louis XL, the Duke of Burgundy 
did not hesitate to address thexitizens of 
Rouen, in consequence of thewpture of 
some ships, as if they had formed an inde 
pendent state. ^ This evidently arose out 
of the ancient customs of private war- 
fare, which, long after they were re- 
pressed by a stricter police at home, con- 
tinued with lawless violence on tlie ocean, 
and gave a character of piracy to the 
commercial enterprise of the middle ages. 

num et unum diem in aliqua villa privilegiata man- 
serit, ita quod in eorum communem gyldam tan- 
quam civis receptus fuerit, eo ipso a villenagio lib- 
erabitur. — Glanvil., 1. v.. c. 5. The cities of Lan- 
guedoc had the same privilege. — Vaissette, t. iii., 
p. 528, 530. And the editor of the Ordonnances 
speaks of it as general, p. 44. A similar custom 
was established in Germany ; but the term of pre- 
scription was, in some places at least, much longer 
than a year and a day. — Pfert'el, t. i., p. 294. 

* Martenne, Thesaur. Anecd., t. i., p. 1513. 

t Velly, t. iv., p. 446 ; t. v., p. 97. 

X Rymer, t. iv,, passim. 
'^ Gamier, t. xvii., p. 396. J 



120 



EUROPE DURING THE MIDDLE AGES. 



[Chap. II, 



Notwithstanding the forces which in 
opposite directions assailed the feudal 
Military system, from the enhancement 
service of of Toyal prerogative, and the 
feudal elevation of the chartered towns, 

tenants . . . i j i i_ 

commu- Its resistance would have been 
led for much longer but for an intrinsic 
money. (]ecay. No political institution 
can endure, which does not rivet itself to 
the hearts of men by ancient prejudice 
or acknowledged interest. The feudal 
compact had originally much of this 
character. Its principle of vitality was 
warm and active. In fulfiUing the obli- 
gations of mutual assistance and fidelity 
by mihtary service, the energies of friend- 
ship were awakened, and the ties of 
moral sympathy superadded to those of 
positive compact. While private wars 
were at their height, the connexion of 
lord and vassal grew close and cordial, 
in proportion to the keenness of their 
enmity towards others. It was not the 
object of a baron to disgust and empover- 
ish his vavassors by enhancing the profits 
of seigniory ; for there was no rent of 
such price as blood, nor any labour so 
serviceable as that of the sword. 

But the nature of feudal obligation 
was far better adapted to the partial 
quarrels of neighbouring lords than to 
the wars of kingdoms. Customs, found- 
ed upon the poverty of the smaller gen- 
try, had limited their martial duties to a 
period never exceeding forty days, and 
diminished according to the subdivisions 
of the fief. They could undertake an ex- 
pedition, but not a campaign ; they could 
burn an open town, but had seldom leis- 
ure to besiege a fortress. Hence, when 
the kings of France and England were 
engaged hi wars, which, on our side at 
least, mifp be termed national, the inef- 
ficiency of the feudal militia became evi- 
dent. It was not easy to employ the 
military tenants of England upon the 
frontiers of Normandy and the Isle of 
France, within the limits of their term of 
service. When, under Henry II. and 
Richard I., the scene of war was fre- 
quently transferred to the Garonne or the 
Charente, this was still more impractica- 
ble. The first remedy to which sover- 
eigns had recourse, was to keep their 
vassals in service after the expiration of 
their forty days, at a stipulated rate of 
pay.* But this was frequently neither 
convenient to the tenant, anxious to re- 
turn back to his household, nor to the 
king, who could not readily defray the 
charges of an army.f Something was 

* Du Cange, et Carpentier, voc. Hostis. 

t There are several instances where armies 



to be devised more adequate to the exi- 
gency, though less suitable to the feudal 
spirit. By the feudal law, the fief was, 
in strictness, forfeited by neglect of at- 
tendance upon the lord's expedition. A 
milder usage introduced a fine, which, 
however, was generally rather heavy, 
and assessed at discretion. An instance 
of this kind has been noticed in an ear- 
lier part of the present chapter, from the 
muster-roll of Philip the Bold's expedi- 
tion against the Count de Foix. The 
first Norman kings of England made 
these amercements very oppressive. But 
when a pecuniary payment became the 
regular course of redeeming personal ser- 
vice, which, under the name of escuage, 
may be referred to the reign of Henry II., 
it was essential to liberty that the mili-^ 
tary tenant should not lie at the mercy 
of the crown.* Accordingly, one of the 
most important provisions contained in 
the Magna Charta of John, secures the 
assessment of escuage in parliament. 
This is not renewed in the character of 
Henry HI., but the practice during his 
reign was conformable to its spirit. 

The feudal military tenures had super- 
seded that earlier system of public de- 
fence, which called upon every man, and 
especially upon every landholder, to pro- 
tect his country.f The relations of a vas- 

broke up, at the expiration of their limited term of 
service, m consequence of disagreement with the 
sovereign. Thus, at the siege of Avignon in 1226, 
Theobald, count of Champagne, retired with his 
troops, that he might not promote the kmg's de- 
signs upon Languedoc. At that of Angers in 1230, 
nearly the same thing occurred. — M. Paris, p. 308. 

* Madox, Hist, of Exchequer, c. 16, conceives 
that escuage may have been levied by Henry I. ; 
the earliest mention of it, however, in a record, is 
under Henry II. in 1159. — Lyttleton's Hist, of 
Henry II., vol. iv., p. 13. 

t Every citizen, however extensive may be his 
privileges, is naturally bound to repel invasion. A 
common rising of the people in arms, though not 
always the most convenient mode of resistance, 
is one to which all governments have a right to re- 
sort. Volumus, says Charles the Bald, ut cujus- 
cunque nostrum homo, in cujuscunque regno sit, 
cum seniore suo in hostem, vel aliis suis utilitati- 
bus pergat : nisi talis regni invasio, quam Lantweri 
dicunt (quodabsit), acciderit, ut omnis populiis illi- 
usregniad earn repellendamcommuniter pergat. — 
Baluzii Capitularia, t. li., p. 44. This very ancient 
mention of the Landwehr, or insurrectional militia, 
so signally called forth in the present age, will 
strike the reader. The obligation of bearing arms 
in defensive war was peculiarly incumbent on the 
freeholder, or allodialist. It made part of the trin 
oda necessitas, in England, erroneously confound 
ed by some writers with a feudal military tenure. 
But when these latter tenures became nearly uni- 
versal, the original principles of public defence 
were almost obliterated ; and I know not how far 
allodial proprietors, where they existed, were called 
upon for service. Kings did not, however, always 
dispense with such aid as the lower people could 



Part II.] 



FEUDAL SYSTEM. 



121 



sal came in place of those of a subject 
and a citizen. This was the revolution 
of the ninth century. In the twelfth and 
thirteenth, another innovation rather 
more gradually prevailed, and marks the 
third period in the military history of 
Europe. Mercenary troops were substi- 
Empioyment tuted for the feudal militia, 
of mercenary Undoubtedly there could never 
troops. jjg^yg been a time when valour 

was not to be purchased with money ; nor 
could any employment of surplus wealth 
be more natural either to the ambitious 
or the weak ; but we cannot expect to 
find numerous testimonies of facts of 
this description.* In public national his- 
tory, I am aware of no instance of what 
may be called a regular army (unless we 
consider the Antrustions of the Merovin- 
gian kings as such), more ancient than 
the body-guards, or huscarles, of Canute 
the Great. These select troops amount- 
ed to six thousand men, on whom he 
probably relied to ensure the subjection 
of England. A code of martial law, com- 
piled for their regulation, is extant in sub- 
stance ; and they are reported to have dis- 
played a military spirit of mutual union, 
of which their master stood in awe.f 



supply. Louis the Fat called out the militia of towns 
and parishes under their priests, who marched at 
their head, though they did not actually command 
them in battle. In the charters of incorporation 
which towns received, the number of troops required 
was usually expressed. These formed the infantry 
of the French amies, perhaps more numerous than 
formidable to an enemy. In the war of the same 
prince with the Emperor Henry V., all the popula- 
tion of the frontier provinces was called out ; for 
the militia of the counties of Rheims and Chalons 
is said to have amounted to sixty thousand men. 
Philip IV. summoned one foot-soldier for every 
twenty hearths to take the field after the battle of 
Courtrai. — (Daniel, Hist, de la Milice Frangaise. 
Velly, t. iii., p. 62 ; t. vh., p. 287.) Commissions of 
array, either to call out the whole population, or, as 
was more common, to select the most serviceable 
by forced impressment, occur in English records 
from the reign of Edward I.— (Stuart's View of So- 
ciety, p. 400.) And there are even several writs 
directed to the bishops, enjoining them to cause all 
ecclesiastical persons to be arrayed and armed on 
account of an expected invasion. — Rymer, t. vi., p. 
726 (46 E. HI.) ; t. vii., p. 1.62 (1 R. II.) ; and t. 
viii., p. 270 (3 H. IV.). 

* The preface to the eleventh volume of Recueil 
des Historiens, p. 232, notices the word solidarii, 
for hired soldiers, as early as 1030. It was proba- 
bly unusual at that time ; though in Roger Hove- 
den, Ordericus Vitalis, and other writers of the 
twelfth century, it occurs not very unfrequently. 
We may perhaps conjecture the abbots, as both the 
richest and most defenceless, to have been the first 
who availed themselves of mercenary valour. 

t For these facts, of which I remember no men- 
tion in English history, I am indebted to the Danish 
collection of Langebek, Scriptores Rerum Danica- 
rum Medii .^vi. Though the Leges Castrenses 
Canuti Magni, published by him, t. iii., p. 141, are 



Harold II. is also said to have had Danish 
soldiers in pay. But the most eminent 
example in that age of a mercenary army, 
is that by whose assistance William 
achieved the conquest of England. His- 
torians concur in representing this force 
to have consisted of sixty thousand men. 
He afterward hired soldiers from vari- 
ous regions to resist an invasion from 
Norway. William Rufus pursued the 
same course. Hired troops did not, how- 
ever, in general form a considerable por- 
tion of armies, till the wars of Henry II. 
and Philip Augustus. Each of these 
monarchs took into p,ay large bodies of 
mercenaries, chiefly, as we may infer 
from their appellation of Brabangons, en- 
listed from the Netherlands. These were 
always disbanded on cessation of hostili- 
ties : and unfit for any habits but of idle 
ness and license, oppressed the peasant- 
ry and ravaged the country without con- 
trol. But their soldier-like principles of 
indiscriminate obedience, still more than 
their courage and field-discipline, render- 
ed them dear to kings, who dreaded the 
free spirit of a feudal army. It was by 
such a foreign force that John saw him- 
self on the point of abrogating the Great 
Charter, and reduced his barons to the 
necessity of tendering his kingdom to a 
prince of France.* 

It now became manifest, that the prob- 
abilities of war inclined to the party 
who could take the field with selected 
and experienced soldiers. The command 
of money was the command of armed 
hirelings, more sure and steady in battle, 
as we must confess with shame, than 
the patriot citizen. Though the nobility 
still composed in a great degree the 
strength of an army, yet they served in 

not in their original statutory form, they proceed 
from the pen of Sweno, the earliest Danish histo- 
rian, who lived under Waldemar I., less than a 
century and a half after Canute. I apply the word 
huscarle, familiar in Anglo-Saxon documents, to 
these military retainers, on the authority of Lange- 
bek in another place, t. ii., p. 454. The object of 
Canute's institutions was to produce a uniformity 
of discipline and conduct among his soldiers, and 
thus to separate them more decidedly from the peo- 
ple. They were distinguished by their dress and 
golden ornaments. Their manners towards each 
other were regulated ; quarrels and abusive words 
subjected to a penalty. All disputes, even respect- 
ing lands, were settled among themselves at their 
general parliament. A singular story is told, which, 
if false, may still illustrate the traditionary charac- 
ter of these guards : that Canute having killed one 
of their body in a fit of anger, it was debated wheth- 
er the king should incur the legal penalty of death ; 
and this was only compromised by his kneeling on 
a cushion before the assembly, and awaiting their 
permission to rise, t. iii., p. 150. 
* Matt. Paris. 



122 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 11. 



a new character; their animating spirit 
was that of chivalry rather than of feu- 
dal tenure ; their connexion with a su- 
perior was personal rather than territo- 
rial. The crusades had probably a ma- 
terial tendency to effectuate this revolu- 
tion, by substituting what was inevitable 
in those expeditions, a voluntary stipen- 
diary service for one of absolute obliga- 
tion.* It is the opinion of Daniel, that 
in the thirteenth century all feudal ten- 
ants received pay, even during their pre- 
scribed term of service. | This does not 
appear consonant to the law of fiefs ; yet 
their poverty may often have rendered 
it impossible to defray the cost of equip- 
ment on distant expeditions. A large 
proportion of the expense must in all 
cases have fallen upon the lord ; and 
hence that perpetually increasing taxa- 
tion, the effects whereof we have lately 
been investigating. 

A feudal army, however, composed of 
all tenants in chief and their vassals, still 
presented a formidable array. It is very 
long before the paradox is generally ad- 
mitted, that numbers do not necessarily 
contribute to the intrinsic efficiency of 
armies. Philip IV. assembled a great 
force, by publishing the arriere-ban, or 
feudal summons, for his unhappy expe- 
dition against the Flemings. A small 
and more disciplined body of troops 
would not, probably, have met with the 
discomfiture of Courtray. Edward I. 
and Edward II. frequently called upon 
those who owed military service, in their 
invasions of Scotland. | But in the French 
wars of Edward III., the whole, I think, 
of his army served for pay, and was rais- 
ed by contract with men of rank and in- 
fluence, who received wages for every 
soldier according to his station and the 
arms he bore. The rate of pay was so 
remarkably high, that unless we imagme 
a vast profit to have been intended for 
the contractors, the private lancers and 
even archers must have been chiefly 
taken from the middling classes, the 
smaller gentry, or rich yeomanry, of 

* Joiiiville, in several passages, intimates that 
most of the knights serving in St. Louis's crusade 
received pay, either from their superior lord, if he 
were on the expedition, or from some other, into 
whose service they entered for the time. He set 
out himself with ten knights, whom he afterward 
found it difTicult enough to maintain.— Collection 
des Memoires, t. i., p. 49, and t, li., p. 53. 

t Hist, de la Milice Frangaise, p. 84. 

The use of mercenary troops prevailed much in 
Germany during the thirteenth century. — Schmidt, 
t. iv., p. 89. In Italy, it was also very common ; 
though its general adoption is to be referred to the 
commencement of the succeeding age. 

t Rymer, t. lii., p. 173, 189, 199, et alibi saepius. 



England.* This part of Edward's military 
system was probably a leading cause of 
his superiority over the French, among 
whom the feudal tenantry were called 
into the field, and swelled their unwieldy 
armies at Crecy and Poitiers. Both par- 
ties, however, in this war employed mer- 
cenary troops. Philip had 15,000 Ital- 
ian crossbowmen at Crecy. It had for 
some time before become the trade of 
soldiers of fortune, to enlist under lead- 
ers of the same description as them- 
selves in companies of adventure, pas- 
sing from one service to another, uncon- 
cerned as to the cause in which they 
were retained. These military adven- 
turers played a more remarkable part 
in Italy than in France, though not a lit- 
tle troublesome to the latter country. 
The feudal tenures had at least furnish- 
ed a royal native militia, whose duties, 
though much limited in the extent, were 
defined by usage, and enforced by princi- 
ple. . They gave place in an evil hour for 
the people, and eventually for sovereigns, 
to contracts with mutinous hirelings, fre- 
quently strangers, whose valour in the 
day of battle inadequately redeemed their 
bad faith and vexatious rapacity. France, 
in her calamitous period under Charles 
VI. and Charles VII., experienced the 
full effects of mihtary licentiousness. 
At the expulsion of the English, robbery 
and disorder were substituted for the 
more specious plundering of Estabiish- 
war. Perhaps few measures mem of a 

, , ^ , regular force 

have ever been more popular, by cimries 
as few certainly have been vii. 
more politic, than the establishment of 
regular companies of troops by an ordi- 
nance of Charles VII., in 1441. f These 
may justly pass for the first example of 
a standing army in Europe ; though some 
Italian princes had retained troops con- 
stantly in their pay, but prospectively to 
hostilities, which were seldom long inter* 
mitted. Fifteen companies were com- 
posed, each of a hundred men at arms, 



* Many proofs of this may be adduced from Ry» 
mer's Collection. The following is from Brady's 
History of England, vol. ii., Appendix, p. 86. The 
wages allowed by contract, in 1346, were for an 
earl, Gs. 8d. per day ; for barons and bannerets, 4*. ; 
for knights, 2s.; for squires, Is.; for archers' and 
hobelers (light cavalry), 6d. ; for archers on foot, 
3d. ; for Welshmen, 2d. These sums, multiplied 
by about 24, to bring them on a level with the 
present value of money, will show the pay to have 
been extremely high. The cavalry, of course, fur- 
nished themselves with horses and equipments, as 
well as arms, which were very expensive. — See 
too Chap. 1., p. 52 of this work. 

t The estates at Orleans in 1439 had advised 
this measure, as is recited in the preamble of the 
ordinance.— Ordoimances des Rois, t. xii., p. 312 



Part II.] 



FEUDAL SYSTEM. 



123 



or lancers ; and, in the language of that 
age, the whole body was one thousand 
five hundred lances. But each lancer 
had three archers, a coutiller, or soldier 
armed with a knife, and a page or valet 
attached to him, all serving on horse- 
back ; so that the fifteen companies 
amounted to nine thousand cavalry.* 
From these small beginnings, as they 
must appear in modern times, arose the 
regular army of France, which every suc- 
ceeding king was solicitous to augment. 
The ban was sometimes convoked, that 
is, the possessors of fiefs were called 
upon for military service in subsequent 
ages ; but with more of ostentation than 
real efficiency. 

The feudal compact, thus deprived of 
Decay of feu- its Original efficacy, soon lost 
dai principles, the respect and attacliment 
which had attended it. Homage and in- 
vestiture became unmeaning ceremonies ; 
the incidents of relief and aid were felt 
as burdensome exactions. And indeed 
the rapacity with which these were lev- 
ied, especially by our Norman sovereigns 
and their barons, was of itself sufficient 
to extinguish all the generous feelings 
of vassalage. Thus galled, as it were, 
by the armour which he was compelled 
to wear, but not to use, the military ten- 
ant of England looked no longer with 
contempt upon the owner of land in soc- 
cage, who held his estate with almost 
the immunities of an allodial proprietor. 
But the profits which the crown reaped 
from wardships, and perhaps the preju- 
dices of lawyers, prevented the abolition 
of military tenures, till the restoration of 
Charles II. In France, the fiefs of no- 
blemen were very unjustly exempted 
from all territorial taxation ; though the 
tallies of later times had, strictly speak- 
ing, only superseded the aids to which 
they had been always liable. This dis- 
tinction, it is well known, was not an- 
nihilated till that event which annihilated 
all distinctions, the French revolution. 

It is remarkable, that, although the 
feudal sytem established in England upon 
the conquest broke in very much upon 
our ancient Saxon liberties ; though it 
was attended with harsher servitudes 
than in any other country, particularly 
those two intolerable burdens, wardship 
and marriage ; yet it has in general been 
treated with more favour by English than 
French writers. The hardiness with 
which the ancient barons resisted their 
sovereign, and the noble struggles which 

* Daniel, Hist, de la Milice Frangaise, p. 266. 
Villaret, Hist, de France, t. xv., p. 394. 



they made for civil xiberty, especially in 
that Great Charter, the basement, at 
least, if not the foundation, of our free 
constitution, have met with a kindred 
sympathy in the bosoms of Englishmen ; 
while, from an opposite feeling, the 
French have been shocked at that aris- 
tocratic independence, which cramped 
the prerogatives, and obscured the lustre, 
of their crown. Yet it is precisely to 
this feudal policy that France is indebt- 
ed for that which is ever dearest to her 
children, their national splendour and 
power. That kingdom would have been 
irretrievably dismembered in the tenth 
century, if the laws of feudal dependance 
had not preserved its integrity. Empires 
of unwieldy bulk, like that of Charle- 
magne, have several times been dissolv- 
ed by the usurpation of provincial gov- 
ernors, as is recorded both in ancient 
history and in that of the Mahometan 
dynasties in the East. What question 
can there be, that the powerful dukes of 
Guienne or counts of Toulouse would 
have thrown off all connexion with the 
crown of France, when usurped by one 
of their equals, if the slight dependance 
of vassalage had not been substituted for 
legitimate subjection to a sovereign] 

It is the previous state of society 
under the grandchildren of Charlemagne, 
which we must always keep in mind, if 
we would appreciate the eifects of the 
feudal system upon the welfare of man- 
kind. The institutions of the eleventh 
century must be compared with those of 
the ninth, not with the advanced civiliza- 
tion of modern times. If the view that 
I have taken of those dark ages is cor- 
rect, the state of anarchy, which we usu- 
ally term feudal, was the natural result 
of a vast and barbarous empire feebly ad- 
ministered, and the cause, rather than 
eff'ect, of the general establishment of 
feudal tenures. These, by preserving the 
mutual relations of the whole, kept alive 
the feeling of a common country and 
common duties; and settled, after the 
lapse of ages, into the free constitution 
of England, the firm monarchy of France, 
and the federal union of Germany. 

The utility of any form of polity may 
be estimated, by its effect upon gg^g^, gg. 
national greatness and security, umate of 
upon civil liberty and private fheaiivan- 

• 1 i i.1 i -ii-i J tages ana 

rights, upon the tranquillity and gy^i., result- 
order of society, upon the in- ingfromiha 
crease and diff"usion of wealth, f^^^^^^^' 
or upon the general tone of 
moral sentiment and energy. The feu- 
dal constitution was certainly, as has 
been observed already, little adapted for 



124 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IT. 



the defence of a mighty kingdom, far less 
for schemes of conquest. But as it pre- 
vailed alike in several adjacent countries, 
none had any thing to fear from the mil- 
itaiy superiority of its neighbours. It 
was this inefficiency of the feudal militia, 
perhaps, that saved Europe during the 
middle ages from the danger of universal 
monarchy. In times when princes had 
little notion of confederacies for mutual 
protection, it is hard to say what might 
not have been the successes of an Otho 
the Great, a Frederick Barbarossa, or a 
Philip Augustus, if they could have wield- 
ed the whole force of their subjects 
whenever their ambition required. If an 
empire equally extensive with that of 
Charlemagne, and supported by military 
despotism, had been formed about the 
twelfth or thirteenth centuries, the seeds 
of commerce and liberty, just then begin- 
ning to shoot, would have perished : and 
Europe, reduced to a barbarous servi- 
tude, might have fallen before the free 
barbarians of Tartary. 

If we look at the feudal polity as a 
scheme of civil freedom, it bears a noble 
countenance. To the feudal law it is 
owing, that the very names of right and 
privilege were not swept away, as in 
Asia, by the desolating hand of power. 
The tyranny which, on every favourable 
moment, was breaking through all bar- 
riers, would have rioted without control, 
if, when the people were poor and dis- 
united, the nobility had not been brave 
and free. So far as the sphere of feudal- 
ity extended, it diffused the spirit of lib- 
erty, and the notions of private right. 
Every one, I think, will acknowledge 
this, who considers the limitations of the 
services of vassalage, so cautiously mark- 
ed in those law-books which are the 
records of customs, the reciprocity of ob- 
ligation between the lord and his tenant, 
the consent required in every measure of 
a legislative or a general nature, the se- 
curity, above all, which every vassal 
found in the administration of justice by 
his peers, and even (we may in this sense 
say) in the trial by combat. The bulk of 
the people, it is true, were degraded by 
servitude, but this had no connexion with 
the feudal tenures. 

The peace and good order of society 
were not promoted by this system. 
Though private wars did not originate in 
the feudal customs, it is impossible to 
doubt that they were perpetuated by so 
convenient an institution, which indeed 
owed its universal establishment to no 
other cause. And as predominant hab- 
its of warfare are totally irreconcila- 



ble with those of industry, not merely 
by the immediate works of destruction 
which render its eff"orts unavailing, but 
through that contempt of peaceful occu- 
pations which thfey produce, the feudal 
system must have been intrinsically ad- 
verse to the accumulation of wealth, and 
the improvement of those arts, which 
mitigate the evils or abridge the labours 
of mankind. 

But as the school of moral discipline, 
the feudal institutions were perhaps most 
to be valued. Society had sunk, for sev- 
eral centuries after the dissolution of the 
Roman empire, into a condition of utter 
depravity ; where, if any vices could be 
selected as more eminently characteris- 
tic than others, they were falsehood, 
treachery, and ingratitude. In slowly 
purging off the lees of this extreme cor- 
ruption, the feudal spirit exerted its ame- 
liorating influence. Violation of faith 
stood first in the catalogue of crimes, 
most repugnant to the very essence of a 
feudal tenure, most severely and prompt- 
ly avenged, most branded by general in- 
famy. The feudal law-books breathe 
throughout a spirit of honourable obliga- 
tion. The feudal course of jurisdiction 
promoted, what trial by peers is pecu- 
liarly calculated to promote, a keener 
feeling and readier perception of moral 
as well as of leading distinctions. And 
as the judgment and sympathy of man- 
kind are seldom mistaken in these great 
points of veracity and justice, except 
through the temporary success of crimes, 
or the want of a definite standard of right, 
they gradually recovered themselves, 
when law precluded the one and sup- 
plied the other. In the reciprocal ser- 
vices of lord and vassal, there was ample 
scope for every magnanimous and disin- 
terested energy. The heart of man, 
when placed in circumstances which 
have a tendency to excite them, will sel- 
dom be deficient in such sentiments. No 
occasions could be more favourable than 
the protection of a faithful supporter, or 
the defence of a beneficent suzerain, 
against such powerful aggression, as left 
little prospect except of sharing in his 
ruin. 

From these feelings, engendered by the 
feudal relation, has sprung up the peculiar 
sentiment of personal reverence and at- 
tachment towards a sovereign which we 
denominate loyalty; alike distinguisha- 
ble from the stupid devotion of eastern 
slaves, and from the abstract respect with 
which free citizens regard their chief 
magistrate. Men who had been used to 
swear fealty, to profess subjection, to fol- 



Part II.] 



ITALY. 



125 



low, at home and in the field, a feudal su- 
perior and his family, easily transferred 
the same allegiance to the monarch. It 
was a very powerful feehng, which could 
make the bravest men put up with slights 
and ill treatment at the hands of their 
sovereign ; or call forth all the energies 
of disinterested exertion for one whom 
they never saw, and in whose character 
there was nothing to esteem. In ages 
when the rights of the community were 
unfelt, this sentiment was one great pre- 
servative of society ; and, though collat- 



eral or even subservient to more enlar 
ged principles, it is still indispensable to 
the tranquillity and permanence of every 
monarchy. In a moral view, loyalty has 
scarcely perhaps less tendency to refine 
and elevate the heart than patriotism it- 
self; and holds a middle place in the 
scale of human motives, as they ascend 
from the grosser inducements of self-in- 
terest, to the furtherance of general hap- 
piness and conformity to the purposes of 
infinite Wisdom. 



CHAPTER III. 



THE HISTORY OF ITALY, FROM THE EXTINCTION OF THE CARLOVINGIAN EM 
PERORS TO THE INVASION OF NAPLES BY CHARLES VIIL 



PART I. 

o tate of Italy after the death of Charles the Fat. — 
Coronation of Otho the Great. — State of Rome. 
— Conrad II. — Union of the Kingdom of Italy 
with the Empire. — Establishment of the Nor- 
mans in Naples and Sicily. — Roger Guiscard. — 
Rise of the Lombard Cities. — They gradually 
become more independent of the Empire. — Their 
Internal Wars. — Frederick Barbarossa. — De- 
struction of Milan. — Lombard League. — Battle 
of Legnano. — Peace of Constance. — Temporal 
PrincipaHty of the Popes. — Guelf and Ghibehn 
Factions. — Otho IV. — Frederick II. — Arrange- 
ment of the Italian Republics. — Second Lombard 
War. — Extinction of the House of Swabia. — 
Causes of the Success of Lombard Republics. — 
Their prosperity — and Forms of Government. — 
Contentions between the Nobility and People. 
—Civil Wars. — Story of Giovanni di Vicenza.* 

At the death of Charles the Fat in 888, 
e,., „rT, 1 that part of Italy which ac- 

State of Italy , i j j ^i, "^ r 

at tiie end of Kuowledged the supremacy of 
the ninth the western empire was divi- 
century, ^^^^ j.j.^ France and Germany, 

* The authorities upon which this chapter is 
founded, and which do not always appear at the 
foot of the page, are chiefly the following. 1. Mu- 
ratori's Annals of Italy (twelve volumes in 4to. or 
eighteen in 8vo.) comprehend a summary of its his- 
tory from the beginning of the Christian era to the 
peace of Aix la Chapelle. The volumes relating 
to the middle ages, into which he has digested the 
original writers contained in his great collection, 
Scriptores Rerum Italicarum, are by much the 
best ; and of these, the part which extends from 
the seventh or eighth to the end of the twelfth cen- 
tury, is the fullest and most useful. Muralori's ac- 
curacy is in general almost implicitly to be trusted, 
and his plain integrity speaks in all his writmgs ; 
but his mind was not philosophical enough to dis- 
criminate the wheat from the chatf, and his habits 
of life induced him to annex an imaginary impor- 
tance to the dates of diplomas and other inconsid- 
erable matters. His narrative presents a mere 



among a few powerful vassals, hereditary 
governors of provinces. The principal 
of these were the dukes of Spoleto and 

skeleton devoid of juices ; and besides its intolera- 
ble aridity, it labours under that confusion which a 
merely chronological arrangement of concurrent 
and independent events must always produce. 2. 
The dissertations on Italian Antiquities, by the 
same writer, may be considered either as one or 
two works. In Latin, they form six volumes in 
folio, enriched with a great number of original doc- 
uments. In Italian, they are freely translated by 
Muratori himself, abridged, no doubt, and without 
most of the original instruments, but well furnish- 
ed witli quotations, and abundantly sufficient for 
most purposes. They form three volumes in quar- 
to. I have in general quoted only the number of 
the dissertation, on account of the variance be- 
tween the Latin and Italian works : in cases where 
the page is referred to, I have indicated, by the 
title, which of the two I intend to vouch. 3. St. 
Marc, a learned and laborious Frenchman, has 
written a chronological abridgment of Italian his- 
tory, somewhat in the manner of Henault, but so 
strangely divided by several parallel columns in ev- 
ery page, that I could hardly name a book more 
inconvenient to the reader. His knowledge, like 
Muraton's, lay a good deal in points of minute in- 
quiry ; and he is chiefly to be valued in ecclesiastical 
history. The work descends only to the thirteenth 
century. 4. Denina's Rivoluzioni d'ltalia, origi- 
nally published in 1769, is a perspicuous and lively 
book, in which the principal circumstances are 
well selected. It is not perhaps free from errors 
in fact, and still less from those of opinion ; but, 
till lately, I do not know from what source a gen 
eral acquaintance with the history of Italy could 
have been so easily derived. 5. The publication 
of M. Sismondi's Histoire des R^publiques Italien- 
nes has thrown a blaze of light around the most 
interesting, at least in many respects, of European 
countries during the middle ages. I am happy to 
bear witness, so far as my own studies have ena- 
bled me, to the learning and diligence of this wri- 
ter; qualities which the world is sometimes apt 
not to suppose, where they perceive so much elo- 
quence and philosophy. 1 cannot express my opin- 



126 



EUROPE DURING THE MIDDLE AGES. 



[CttAf. III. 



Tuscany, the marquises of Ivrea, Susa, 
and Friuli. The great Lombard dutchy 
of Benevento, which had stood against 
the arms of Charlemagne, and comprised 
more than half the present kingdom of 
Naples, had now fallen into decay, and 
was straitened by the Greeks in Apulia, 
and by the principalities of Capua and 
Salerno, which had been severed from its 
own territory, on the opposite coast.* 
And in the Though princes of the Carlovin- 
firstpartof giau line continued to reign in 
the tenth. Prance, their character was too 
little distinguished to challenge the obe- 
dience of Italy, already separated by fam- 
ily partitions from the Transalpine na- 
tions ; and the only contest was among 
her native chiefs. One of these, Beren- 
ger, originally Marquis of Friuli, or the 
March of Treviso, reigned for thirty-six 
years, but with continually disputed pre- 
tensions ; and, after his death, the calam- 
ities of Italy were sometimes aggravated 
by tyranny, and sometimes by intestine 



ion of M. Sismondi in this respect more strongly 
than by saying that his work has almost superseded 
the annals of Muratori ; 1 mean from the twelfth 
century, before which period his labour hardly be- 
gins. Though doubtless not more accurate than 
Muratori, he has consulted a much more extensive 
list of authors; and, considered as a register of 
facts alone, his history is incomparably more use- 
ful. These are combined in so skilful a manner, 
as to diminish, in a great degree, that inevitable 
confusion which arises from frequency of transi- 
tion and want of general unity. It is much to be 
regretted, that from too redundant details of unne- 
cessary circumstances, and sometimes, if I may 
take the liberty of saying so, from unnecessary re- 
flections, M . Sismondi has run into a prolixity which 
will probably intimidate the languid students of our 
age. It is the more to be regretted, because the 
History of Italian Kepublics is calculated to pro- 
duce a good far more important than storing the 
memory with historical facts, that of communica- 
ting to the reader's bosom some sparks of the dig- 
nified philosophy, the love for truth and virtue, 
which live along its eloquent pages. 6. To Mu- 
raton's collection of original writers, the Scriptores 
Rerum Italicarum, in twenty-four volumes in folio, 
I have paid considerable attention ; perhaps there 
is no volume of it which I have not more or less 
consulted. But, after the annals of the same wri- 
ter, and the work of M. Sismondi, I have not 
thought myself bound to repeat a laborious search 
into all the authorities upon which those writers 
depend. The utility, for the most part, of perusing 
original and contemporary authors, consists less 
in ascertaining mere facts, than in acquiring that 
insight into the spirit and temper of their times, 
which it is utterly impracticable for any compiler 
to impart. It would be impossible for me to dis- 
tinguish what information I have derived from 
these higher sources ; in cases, therefore, where 
no particular authority is named, I would refer to 
the writings of Muratori and Sismondi, especial- 
ly the latter, as the substratum of the following 
chapter.. 

* Giannone, Istoria Civile di Napoli, 1. vii. Sis- 
mondi, Hist, des Republiques Italiemies, t. i., p. 
344. > ' y 



war. The Hungarians desolated Lorn- 
hardy ; the southern coasts were infested 
by the Saracens, now masters of Sicily. 
Plunged in an abyss, from which she saw 
no other means of extricating herself, 
Italy lost sight of her favourite independ- 
ence, and called in the assistance of Otho 
the First, king of Germany. Little op- 
position was made to this powerful mon 
arch. Berenger II., the reigning sever 
eign of Italy, submitted to hold the king- 
dom of him as a fief.* But some years 
afterward, new disturbances ari- oiho the 
sing, Otho descended from the ^^^at. 
Alps a second time [A. D. 961], deposed 
Berenger, and received at the hands of 
Pope John XII. the imperial dignity, 
which had been suspended for nearly for- 
ty years. 

Every ancient prejudice, every recol- 
lection, whether of Augustus or of Char- 
lemagne, had led the Italians to annex 
the notion of sovereignty to the name 
of Roman emperor; nor were Otho, or 
his two immediate descendants, by any 
means inclined to waive these supposed 
prerogatives, which they Avere well able 
to enforce. Most of the Lombard princes 
acquiesced without apparent repugnance 
in the new German government, which 
was conducted by Otho the Great with 
much prudence and vigour, and occasion- 
ally with severity. The citizens of Lom- 
bardy were still better satisfied with a 
change, that ensured a more tranquil and 
regular administration than they had ex- 
perienced under the preceding kings. 
But in one, and that the chief of Italian 
cities, very different sentiments were 
prevalent. We find, indeed, a con- inter A 
siderable obscurity spread over the state of 
internal history of Rome, during ^o™^- 
the long period from the recovery of Italy 
by Belisarius to the end of the eleventh 
century. The popes appear to have pos- 
sessed some measure of temporal power, 
even while the city was professedly gov- 
erned by the exarchs of Ravenna, in the 
name of the eastern empire. This power 
became more extensive after her separa- 
tion from Constantinople. It was, how- 
ever, subordinate to the undeniable sover- 
eignty of the new imperial family, who 
were supposed to enter upon all the rights 
of their predecessors. There was al- 
ways an imperial officer, or prefect, in 
that city, to render criminal justice; an 
oath of allegiance to the emperor was 
taken by the people ; and upon any irreg- 
ular election of a pope, a circumstance 
by no means unusual, the emperors held 



* Muratori, A. D. 951. Denina, Rivoluaioni 
d'llalia, 1. ix., c. 6. 



Part I.] 



ITALY. 



127 



themselves entitled to interpose. But the 
spirit and even the institutions of the 
Romans were republican. Amid the 
darkness of the tenth century, which no 
contemporary historian dissipates, we 
faintly distinguish the awful names of 
senate, consuls, and tribunes, the domes- 
tic magistracy of Rome. These shadows 
of past glory strike us at first with sur- 
prise ; yet there is no improbability in 
the supposition, that a city so renowned 
and populous, and so happily sheltered 
from the usurpation of the Lombards, 
might have preserved, or might afterward 
establish, a kind of municipal govern- 
ment, which it would be natural to dig- 
nify with those august titles of antiquity.* 
During that anarchy which ensued upon 
the fall of the Carlovingian dynasty, the 
Romans acquired an independence which 
they did not deserve. The city became 
a prey to the most terrible disorders ; the 
papal chair was sought for at best by 
bribery, or controlling influence, often by 
violence and assassination ; it was filled 
by such men as naturally rise by such 
means, whose sway was precarious, and 
generally ended either in their murder or 
degradation. For many years the su- 
preme pontiffs were forced upon the 
church by two women of high rank, but 
infamous reputation, Theodora and her 
daughter Marozia. The kings of Italy, 
whose election in a diet of Lombard 
princes and bishops at Roncaglia was not 
conceived to convey any pretension to the 
sovereignty of Rome, could never obtain 
any decided influence in papal elections, 
which were the object of struggling fac- 
tions among the resident nobility. In 
this temper of the Romans, they were ill 
disposed to resume habits of obedience 
to a foreign sovereign. The next year 
after Otho's coronation [A. D. 972], they 
rebelled, the pope at their head ; but were 
of course subdued without difficulty. 
The same republican spirit broke out 
whenever the emperors were absent in 
Germany, especially during the minoritj'- 
of Otho III., and directed itself against 
the temporal superiority of the pope. 
But when that emperor attained man- 
hood, he besieged and took the city, 
crushing all resistance by measures of 
severity; and especially by the execu- 
tion of the consul Crescentius, a leader 
of the popular faction, to whose instiga- 
tion the tumultuous license of Rome was 
principally ascribed.f 



* Muratori, A. D. 967, 987, 1015, 1087. Sis- 
mondi, t. i., p. 155. 

t Sismondi, t. i., p. 164, makes a patriot hero of 
Crescentius. Bat we know so little of the man 



At the death of Otho III. without chil- 
dren, in 1002, the compact be- nenryir. 
tween Italy and the emperors and Ardoin. 
of the house of Saxony was determined. 
Her engagement of fidelity was certainly 
not applicable to every sovereign whom 
the princes of Germany might raise to 
their throne. Accordingly Ardoin, mar- 
quis of Ivrea, was elected king of Italy. 
But a German party existed among the 
Lombard princes and bishops, to which 
his insolent demeanour soon gave a pre- 
text for inviting Henry II., the new king 
of Germany, collaterally related to their 
late sovereign. Ardoin was deserted by 
most of the Italians, but retained his for- 
mer subjects in Piedmont, and disputed 
the crown for many years with Henry, 
Avho passed very little time in Italy. Du- 
ring this period there was hardly any 
recognised government ; and the Lom- 
bards became more and more accustom- 
ed, through necessity, to protect them- 
selves, and to provide for their own inter- 
nal police. Meanwhile the German na- 
tion had become odious to the Italians. 
The rude soldiery, insolent and addicted 
to intoxication, were engaged in frequent 
disputes with the citizens, wherein the 
latter, as is usual in similar cases, were 
exposed first to the summary vengeance 
of the troops, and afterward' to penal 
chastisement for sedition.* In one of 
these tumults, at the entry of Henry II., 
in 1004, the city of Pavia was burnt to 
the ground, which inspired its inhabitants 
with a constant animosity against that 
emperor. Upon his death in 1024, the 
Italians were disposed to break once 
more their connexion with Germany, 
which had elected as sovereign Conrad, 
duke of Franconia. They offered their 
crown to Robert, king of France, and to 
William, duke of Guienne ; but neither 
of them was imprudent enough to involve 
himself in the difficult and faithless pol- 
itics of Italy. It may surprise us that no 
candidate appeared from among her na- 
tive princes. But it had been the dex- 
terous policy of the Othos to weaken the 
great Italian fiefs, which were still rather 
considered as hereditary governments 
than as absolute patrimonies, by separa- 
ting districts from their jurisdiction, under 
inferior marquises and rural counts. f 
The bishops were incapable of becoming 
competitors, and generally attached to 



or the times, that it seems better to follow the 
common tenour of history, without vouching for 
the accuracy of its representations. 

* Muratori, A. D. 1027, 1037. 

t Denina, 1. ix., c. 11. Muratori, Antiq. Ital, 
Dissert. 8. Annali d'ltalia, A. D. 989. 



128 



EUROPE DURING THE MIDDLE AGES. 



[Ciup. III. 



the German party. The cities ah-eady 
possessed material influence, but were 
disunited by mutual jealousies. [A. D. 
102-t.] Since ancient prejudices, there- 
Election of fore, precluded a federate league 
Conrad II. of independent principalities and 
republics, for which perhaps the actual 
condition of Italy unfitted her, Eribert, 
archbishop of Milan, accompanied by 
some other chief men of Lombardy, re- 
paired to Constance, and tendered the 
crown to Conrad, which he was already 
disposed to claim as a sort of dependance 
upon Germany. It does not appear that 
either Conrad or his successors were 
ever regularly elected to reign over It- 
aly ;* but whether this ceremony took 
place or not, we may certainly date from 
that time the subjection of Italy to the 
Germanic body. It became an unques- 
tionable maxim, that the votes of a few 
German princes conferred a right to the 
sovereignty of a country which had never 
been conquered, and which had never for- 
mally recognised this superiority.! But 
it was an equally fundamental rule, that 
the elected king of Germany could not 
assume the title of Roman emperor, until 
his coronation by the pope. The middle 
appellation of King of the Romans was 
invented as a sort of approximation to the 
imperial dignity. But it was not till the 
reign of Maximilian that the actual coro- 
nation at Rome was dispensed with, and 
the title of emperor taken immediately 
after the election. 

The period between Conrad of Fran- 
conia and Frederick Barbarossa, or from 
about the middle of the eleventh to that 
of the twelfth century, is marked by 
three great events in Italian history ; the 
struggle between the empire and the pa- 
pacy for ecclesiastical investitures, the 
establishment of the Norman kingdom in 
Naples, and the formation of distinct and 
nearly independent republics among the 

* Muratori, A. D. 1026. It is said afterward, p. 
367, that he was a Romanis ad Imperatorem elec- 
tus. The people of Rome therefore preserved 
their nominal right of concurring in the election of 
an emperor. Muratori, in another place, A. D. 
1040, supposes that Henry III. was chosen king of 
Italy, though he allows that no proof of it exists ; 
and there seems no reason for the supposition. 

t Gunther, the poet of Frederick Barbarossa, ex- 
presses this not inelegantly : — 

Romani gloria regni 
Nos penes est ; quemcunque sibi Germania regem 
Praeficit, hunc dives submisso vertice Roma 
Accipit, et verso Tiberim regit ordine Rhenus. 

Gunther, Ligurinus ap. IStruvium Corpus Hist. 
German., p. 266. 
Yet it appears from Otho of Frisingen, an unques- 
tionable authority, that some Italian nobles con- 
curred, or at least were present and assisting, in 
the election of Frederick himself, 1, ii., c. i. 



cities of Lombardy. The first of these 
will find a more appropriate place in a 
subsequent chapter, where I shall trace 
the progress of ecclesiastical power. But 
it produced a long and almost incessant 
state of disturbance in Italy ; and should 
be mentioned at present as one of the 
main causes which excited in that coun- 
try a systematic opposition to the im- 
perial authority. 

The southern provinces of Italy, in the 
beginning of the eleventh cen- ^ 
tury, were chiefly subject to incesor"' 
the Greek empire, which had southern 
latterly recovered part of its '"*'^" 
losses, and exhibited some ambition and 
enterprise, though without any intrinsic 
vigour. They were governed by a lieu- 
tenant, styled Catapan,* who resided at 
Bari in Apulia. On the Mediterranean 
coast, three dutchies, or rather republics, 
of Naples, Gaeta, and Amalfi, had for 
several ages preserved their connexion 
with the Greek empire, and acknowl- 
edged its nominal sovereignty. The 
Lombard principalities of Benevento, 
Salerno, and Capua, had much declined 
from their ancient splendour. The Greeks 
were, however, not likely to attempt any 
further conquests : the court of Constan- 
tinople had relapsed into its usual indo- 
lence ; nor had they much right to boast 
of successes, rather due to the Saracen 
auxiliaries, whom they hired from Sicily. 
No momentous revolution apparently 
threatened the south of Italy, and least 
of all could it be anticipated from what 
quarter the storm was about to gather. 

The followers of RoUo, who rested 
from plunder and piracy in the ^^^^^^ 
quiet possession of Normandy, onhe Nor- 
becaine devout professors of the mans at 
Christian faith, and particularly ■^■*''^''^'*- 
addicted to the custom of pilgrimage, 
which gratified their curiosity and spirit 
of adventure. In small bodies, well 
armed, on account of the lawless charac- 
ter of the countries through which they 
passed, the Norman pilgrims visited the 
shrines of Italy and even the Holy Land. 
Some of these, very early in the eleventh 
century, were engaged by a Lombard 
prince of Salerno against the Saracens, 
who had invaded his territory ; and 
through that superiority of valour, and 
perhaps of corporal strength, which this 
singular people seem to have possess- 
ed above all other Europeans, they 
made surprising havoc among the ene- 
my.f This exploit led to fresh engage- 

* Catapanus, from Kara rav, one employed in the 
general administration of affairs. 
] Giannone, t. ii., p. 7 [edit. 1753]. I should ob 



Part I.] 



ITALY. 



129 



ments, and these engagements drew new 
adventurers from Normandy ; they found- 
ed the httle city of Aversa near Capua, 
and were employed by the Greeks against 
the Saracens of Sicily. But, though per- 
forming splendid services in this war, 
they were ill repaid by their ungrateful 
employers ; and being by no means of a 
temper to bear with injury, they revenged 
themselves by a sudden invasion of Apu- 
lia. This province was speedily sub- 
dued, and divided among twelve Norman 
Conquests counts [A. D. 1042] ; but soon af- 
of Robert terward Robert Guiscard, one of 
Guisiiard. j^yejve brothers, many of whom 
were renowned in these Italian wars, 
acquired the sovereignty ; and adding 
Calabria to his conquests [A. D. 1057], 
put an end to the long dominion of the 
Eastern emperors in Italy.* He reduced 
the principalities of Salerno and Bene- 
vento, in the latter instance sharing the 
spoil with the pope, who took the city to 
himself, while Robert retained the terri- 
tory. His conquests in Greece, which 
he invaded with the magnificent design 
of overthrowing the Eastern empire, 
were at least equally splendid, though 
less durable. [A. D. 1061.] Roger, his 
younger brother, undertook meanwhile 
the romantic enterprise, as it appeared, 
of conquering the Island of Sicily, with 
a small body of Norman volunteers. 
But the Saracens were broken into petty 
states, and discouraged by the bad suc- 
cess of their brethren in Spain and Sar- 
dinia. After many years of war, Roger 
became sole master of Sicily, and took 
the title of count. The son of this prince, 
upon the extinction of Robert Guiscard's 
posterity, united the two Norman sover- 
eignties, and subjugating the free repub- 
lics of Naples and Amalfi, and the princi- 
paUty of Capua [A. D. 1127], estabhshed 
a boundary which has hardly been changed 
since his time.f 

The first successes of these Norman 
Papal inves- leaders were viewed unfavoura- 
tituresof bly by the popes. Leo IX. 
Naples. marched in person against Rob- 
ert Guiscard with an army of German 

serve, that St. Marc, a more critical writer in ex- 
amination of facts than Giannone, treats this first 
adventure of the Normans as unauthenticated. 
— Abrege ChroHologique, p. 990. 

* The final blow was given to the Greek domi- 
nation over Italy by the capture of Ban, in 1071, 
after a siege of foi>r years. It had for some time 
been confined to this single city. — Muratori, St. 
Marc. 

t M. Sismondi has excelled himself in descri- 
bing the conquest of Amalfi and Naples by Roger 
Guiscard (t. i., c. 4) ; warming his imagination 
with visions of liberty and virtue in those obscure 
republics, which no real history survives to dispel. 



mercenaries, but was beaten and made 
prisoner in this unwise enterprise, the 
scandal of which nothing but good for- 
tune could have lightened. He fell, how- 
ever, into the hands of a devout pe ,ple, 
who implored his absolution for the 
crime of defending themselves ; and 
whether through gratitude, or as the 
price of his liberation, invested them 
with their recent conquests in Apulia as 
fiefs of the Holy See. This investiture 
was repeated and enlarged, as the popes, 
especially in their contention with Henry 
IV. and Henry V., found the advantage 
of using the Normans as faithful auxilia- 
ries. Finally, Innocent II., in 1139, con- 
ferred upon Roger the title of King of 
Sicily. It is difficult to understand by 
what pretence these countries could be 
claimed by the see of Rome in sover- 
eignty, unless by virtue of the pretended 
donation of Constantine, or that of Louis 
the Debonair, which is hardly less suspi- 
cious ;* and, least of all, how Innocent 
II. could surrender the liberties of the 
city of Naples, whether that was consid- 
ered as an independent republic, or as a 
portion of the Greek empire. But the 
Normans, who had no title but their 
swords, were naturally glad to give an 
appearance of legitimacy to their con- 
quest ; and the kingdom of Naples, even 
in the hands of the most powerful princes 
in Europe, never ceased to pay a feudal 
acknowledgment to the chair of St. Peter. 
The revolutions which time brought 
forth on the opposite side of Italy were 
still more interesting. Under the Lom- 
bard and French princes, every Progress of 
city with its adjacent district was thelom- 
subject to the government and ^^""^ '^'''^* 
jurisdiction of a count, who was himself 
subordinate to the duke or marquis of 
the province. From these counties it 
was the practice of the first German em- 
perors to dismember particular towns or 
tracts of country, granting them upon a 
feudal tenure to rural lords, by many of 
whom also the same title was assumed. 
Thus by degrees the authority of the ori- 
ginal officers was confined almost to the 
walls of their own cities ; and in many 
cases the bishops obtained a grant of the 
temporal government,! ai'"! exercised the 
functions which had belonged to the count. 

* Muratori presumes to suppose, that the inter- 
polated, if not spurious, grants of Louis the Debo- 
nair, Otho I., and Henry II., to the see of Rome, 
were promulgated about the time of the first con- 
cessions to the Normans, in order to give the popes 
a colourable pretext to dispose of the southern 
provinces of Italy. A. D 1059. 

t Muratori, Antiquit. Italis, Dissert. 8. Annali 
d'ltalia, A. D. 989. Antichita Estensi, p. 26 



130 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



It is impossible to ascertain the time at 
which the cities of Lombardy began to 
assume a repubhcan form of government, 
or to trace with precision the gradations 
of their progress. The last historian of 
Italy asserts, that Otho the First erected 
them into municipal communities, and 
permitted the election of their magis- 
trates ; but of this he produces no evi- 
dence ; and IMuratori, from whose author- 
ity it is rash to depart without strong 
reasons, is not only silent about any 
charters, but discovers no express une- 
quivocal testimonies of a popular govern- 
ment for the whole eleventh century.* 
The first appearance of the citizens act- 
ing for themselves, is in a tumult at Mi- 
lan, in 991, when the archbishop was ex- 
pelled from the city.f But this was a 
transitory ebullition, and we must descend 
lower for more specific proofs. It is pos- 
sible that the disputed succession of Ar- 
doin and Henry, at the beginning of the 
eleventh age, and the kind of interregnum 
which then took place, gave the inhabi- 
tants an opportunity of choosing magis- 
trates, and of sharing in public delibera- 
tions. A similar relaxation indeed of gov- 
ernment in France, had exposed the peo- 
ple to greater servitude, and established 
a feudal aristocracy. But the feudal te- 
nures seem not to have produced in Italy 
that systematic and regular subordination 
which existed in France during the same 
period ; nor were the mutual duties of 
the relation between lord and vassal so 
well understood or observed. Hence we 
find not only disputes, but actual civil 
war between the lesser gentry or vavas- 
sors, and the higher nobility, their imme- 
diate superiors. These differences were 
adjusted by Conrad the Salic, who pub- 
lished a remarkable edict in 1037, by 
which the feudal law of Italy was re- 
duced to more certainty. | From this 
disunion among the members of the feu- 
dal confederacy, it was moi'e easy for the 
citizens to render themselves secure 
against its dominion. The cities, too, of 
Lombardy, were far more populous and 
better defended than those of France ; 
they had learned to stand sieges in the 
Hungarian invasions of the tenth century, 
and had acquired the right of protect- 
ing themselves by strong fortifications. 
Those which had been placed under the 
temporal government of their bishops 
had pecuhar advantages in struggling for 



49. 



* Sismondi, t. i., p. 97, 384. Muratori, Dissert. 
). 

t Muratori, Annali d'ltalia. 
t Ibid. St. Marc. 



emancipation.* This circumstance in the 
state of Lombardy I consider as highly 
important towards explaining the subse- 
quent revolution. Notwithstanding sev- 
eral exceptions, a churchman was less 
likely to be bold and active in command 
than a soldier ; and the sort of election 
which was always necessary, and some- 
times more than nominal, on a vacancy 
of the see, kept up among the citizens a 
notion that the authority of their bishop 
and chief magistrate emanated in some 
degree from themselves. In many in- 
stances, especially in the church of Milan, 
the earliest, perhaps, and certainly the 
most famous of Lombard republics, there 
occurred a disputed election ; two, or 
even three competitors, claimed the 
archiepiscopal functions, and were com- 
pelled, in the absence of the emperors, 
to obtain the exercise of them by means 
of their own faction among the citizens. f 
These were the general causes, which, 
operating at various times during the 
eleventh century, seem gradually to have 



* The bishops seem to have become counts, 
or temporal governors of their sees, about the 
end of the tenth, or before the middle of the elev- 
enth century. — Muratori, Dis. 8. Denina, 1. ix., 
c. 11. St. Marc, A. D. 1041, 1047, 1070. In Ar- 
nulf's History of Milan, written before the close of 
the latter age, we have a contemporary evidence. 
And from the perusal of that work I should infer, 
that the archbishop was, in the middle of the 11th 
century, the chief magistrate of the city. But, at 
the same time, it appears highly probable, that an 
assembly of the citizens, or at least a part of the 
citizens, partook in the administration of public af- 
fairs. — Muratori, Scriptores Rerum Italicarum, t. 
iv., p. 16, 22, 23, and particularly the last. In most 
cities to the eastward of the Tesino, the bishops 
lost their temporal authority in the twelfth centu- 
ry, though the archbishop of Milan had no small 
prerogatives while that city was governed as a re- 
public. But in Piedmont they continued longer in 
the enjoyment of power. Vercelli and even Turin 
were almost subject to their respective prelates till 
the thirteenth century. For this reason among 
others, the Piedmontese cities are hardly to be 
reckoned among the republics of Lombardy. — De- 
nina, Istoria dell'Itaha Occidentale, t. i., p. 191. 

t Muratori, A. D. 1345. Sometimes the inhab- 
itants of a city refused to acknowledge a bishop 
named by the emperor, as happened at Pavia and 
Asti about 1057. — Arnulf, p. 22. This was, in oth- 
er words, setting up themselves as republics. But 
the most remarkable instance of this kind occurred 
in 1070, when the Milanese absolutely rejected 
Godfrey, appointed by Henry IV., and after a re- 
sistance of several years, obliged the emperor to 
fix upon another person. The city had been pre- 
viously involved in long and violent tumults, which, 
though rather belonging to ecclesiastical than civil 
history, as they arose out of the endeavours made 
to reform the conduct and enforce the celibacy of 
the clergy, had a considerable tendency to diminish 
the archbishop's authority, and to give a republican 
character to the inhabitants. These proceedings are 
told at great length by St. Marc, t. iii., A. D. 1056- 
1077. Arnulf and Landulf are the original sources. 



Part I.] 



ITALY. 



131 



produced a republican form of govern- 
ment in the Italian cities. But this part 
of history is very obscure. The archives 
of all cities before the reign of Frederick 
Barbarossa have perished. For many 
years there is a great deficiency of con- 
temporary Lombard historians, and those 
of a later age, who endeavoured to search 
into the antiquities of their country, have 
found only some barren and insulated 
events to record. We perceive, howev- 
er, throughout the eleventh century, that 
the cities were continually in warfare 
with each other. This, indeed, was ac- 
cording to the manners of that age, and 
no inference can absolutely be drawn 
from it as to their internal freedom. But 
it is observable, that their chronicles 
speak, in recording these transactions, 
of the people, and not of their leaders, 
which is the true republican tone of his- 
tory. Thus, in the Annals of Pisa, we 
read under the years 1002 and 1004, of 
victories gained by the Pisans over the 
people of Lucca ; in 1006, that the Pisans 
and Genoese conquered Sardinia.* These 
annals indeed are not by a contemporary 
writer, nt)r perhaps of much authority. 
But we have an original account of a 
war that broke out in 1057, between Pa- 
via and Milan, in which the citizens are 
said to have raised armies, made allian- 
ces, hired foreign troops, and in every 
respect acted like independent states. f 
There was, in fact, no power left in the 
empire to control them. The two Hen- 
rys IV. and V. were so much embar- 
rassed during the quarrel concerning in- 
vestitures, and the continual troubles of 
Germany, that they were less likely to 
interfere with the rising freedom of the 
Italian cities, than to purchase their as- 
sistance by large concessions. Henry 
IV. granted a charter to Pisa, in 1081, 
full of the most important privileges, 
promising even not to name any mar- 
quis of Tuscany without the people's 
consent ■,% and it is possible, that al- 
though the instruments have perished, 
other places might obtain similar ad- 
vantages. However this may be, it is 
certain that, before the death of Henry 

* Murat., Diss. 45. Arnulfus, the historian of 
Milan, makes no mention of any temporal counts, 
which seems to be a proof that there were none in 
any authority. He speaks always of Mediolanen- 
ses, Papienses, Ravenates, &c. This history was 
written about 1085, but relates to the earlier part 
of that century. That of Landulfus corroborates 
this supposition, which indeed is capable of proof 
as to Milan and several other cities in which the 
temporal government had been legally vested in 
the bishops. 

t Murat, Diss. 45. Arnulf., Hist. Mediolan.,p. 22. 

t Murat., Dissert. 45. 
12 



v., in 1125, almost all the cities of Lom- 
bardy, and many among those of Tusca- 
ny, were accustomed to elect their own 
magistrates, and to act as independent 
communities, in waging war and in do- 
mestic government.* 

The territory subjected originally to 
the count or bishop of these Their acqui- 
cities had been reduced, as I sitions of 
mentioned above, by numerous '^rntory. 
concessions to the rural nobility. But 
the new republics, deeming themselves 
entitled to all which their former gov- 
ernors had once possessed, began to 
attack their nearest neighbours, and to 
recover the sovereignty of all their an- 
cient territory. They besieged the cas- 
tles of the rural counts, and successively 
reduced them into subjection. They, 
suppressed some minor communities, 
which had been formed, in imitation of 
themselves, by little towns belonging 
to their district. Sometimes they pur- 
chased feudal superiorities or territorial 
jurisdictions, and, according to a policy 
not unusual with the stronger party, con- 
verted the rights of property into those 
of government. f Hence, at the middle 
of the twelfth century, we are assured 
by a contemporary writer, that hardly 
any nobleman could be found except the 
Marquis of Montferrat, who had not sub- 
mitted to some city.J We may except 
also, I should presume, the families of 
Este and Malaspina, as well as that of 
Savoy. Muratori produces many charters 
of mutual compact between the nobles 
and the neighbouring cities ; whereof 
one invariable article is, that the former 
should reside within the walls a certain 
number of months in the year.^ The 
rural nobility, thus deprived of the inde- 
pendence which had endeared their cas- 
tles, imbibed a new ambition of directing 
the municipal government of the cities, 
which, during the first period of the re- 
publics, was chiefly in the hands of the 
superior families. It was the sagacious 
policy of the Lombards to invite settlers 
by throwing open to them the privileges 
of citizenship, and sometimes they even 
bestowed them by compulsion. Some- 



* Murat., Annali d'ltal., A. D. 1107. 

t II dominio utile delle citta e de' villaggi era tal 
volta diviso fra due o piii padroni, ossia che s'as- 
segnassero a ciascuno diversi quartieri, o si divi- 
dessero i proventi della gabelle, ovvero che I'uno 
signore godesse d'una spezie della giurisdizione, 
e I'altro d'un' altra. — Denina, 1. xii., c. 3. This 
produced a vast intricacy of titles, which was of 
course advantageous to those who wanted a pre- 
text for robbing their neighbours. 

t Otho Frismgens., 1. ii., c. 13. 

^ Murat., Diss. 49. 



132 



EUROPE DURING THE MIDDLE AGES. 



Chap. III. 



times a city, imitating the wisdom of 
ancient Rome, granted these privileges 
to all the inhabitants of another.* Thus 
the principal cities, and especially Milan, 
reached, before the middle of the twelfth 
century, a degree of population very far 
beyond that of the capitals of the great 
kingdoms. Within their strong walls and 
deep trenches, and in the midst of their 
well-peopled streets, the industrious dwelt 
secure from the license of armed pilla- 
gers and the oppression of feudal tyrants. 
Artisans, whom the military landholders 
contemned, acquired and deserved the 
right of bearing arms for their own and 
the public defence. f Their occupations 
became liberal, because they were the 
foundation of their political franchises ; 
the citizens were classed in companies 
according to their respective crafts ; each 
of which had its tribune or standard-bearer 
(gonfalonier), at whose command, when 
any tumult arose or enemy threatened, 
they rushed in arms to muster in the 
market-place. 

But, unhappily, we cannot extend the 
Their mutual Sympathy, which institutions 
animosities, go full of liberty create, to the 
national conduct of these little republics. 
Their love of freedom was alloyed by 
that restless spirit, from which a democ- 
racy is seldom exempt, of tyrannising 
over weaker neighbours. They played 
over again the tragedy of ancient Greece, 
with all its circumstances of inveterate 
hatred, unjust ambition, and atrocious 
retaliation, though with less consummate 
actors upon the scene. Among all the 
Lombard cities, Milan was the most con- 
spicuous, as well for power and popula- 
tion, as for the abuse of those resour- 
ces by arbitrary and ambitious conduct. 
Thus, in 1111, they razed the town of 
Lodi to the ground, distributing the in- 
habitants among six villages, and sub- 
jecting them to an unrelenting despo- 
tism. J Thus, in 1118, they commenced 



* Murat., Diss. 49. 

t Otho Frisingensis ap. Murat. Scr. Rer. Ital., 
t. vi., p. 708. Ut etiam ad comprimendos vicinos 
materia non careant, inferioris ordinis juvenes, vel 
quoslibet contemptibilium etiam mechanicarum ar- 
tium opifices, quos caeterae gentes ab honestioribus 
at liberioribus studiis tanquam pestem propellunt, 
ad militise cingulum, vel dignitatum gradus assu- 
mere non dedignantur. Ex quo factum est, ut 
caeteris orbis civitatibus, divitiis et potentia prae- 
emineant. 

J The animosity between Milan and Lodi was of 
very old standing. It originated, accordmg to Ar- 
nulf, in the resistance made by the inhabitants of 
the latter city to an attempt made by Archbishop 
Eribert to force a bishop of his own nomination 
upon them. The bloodshed, plunder, and conlla- 
grations which had ensued, would, he says, fill a 
volume, if they were related at length. — Scnptores 



a war of ten years' duration with the 
little city of Como ; but the surprising 
perseverance of its inhabitants procured 
for them better terms of capitulation, 
though they lost their original independ- 
ence. The Cremonese treated so harsh- 
ly the town of Crema, that it revolted 
from them, and put itself under the pro- 
tection of Milan. Cities of more equal 
forces carried on interminable hostilities 
by wasting each other's territory, de- 
stroying the harvests, and burning the vil- 
lages. 

The sovereignty of the emperors, 
meanwhile, though not very ef- sovereignty 
fective, was in theory always of tiie em- 
admitted. Their name was P^f^rs. 
used in public acts, and appeared upon 
the coin. "When they came into Italy, 
they had certain customary supplies of 
provisions called fodruni regale, at the 
expense of the city where they resided ; 
during their presence, all inferior magis- 
tracies were suspended, and the right of 
jurisdiction devolved upon them alone. 
But such was the jealousy of the Lom- 
bards, that they built the royal palaces 
without their gates ; a precaution to 
which the emperors were compelled to 
submit. This was at a very early time 
a subject of contention between the in- 
habitants of Pavia and Conrad II., whose 
palace, seated in the heart of the city, they 
had demolished in a sedition, and were 
unwilling to rebuild in that situation.* 

Such was the condition of Italy wheij 
Frederick Barbarossa, duke of Frederick 
Swabia, and nephew of the last Barbarossa. 
emperor, Conrad III., ascended the throne 
of Germany. His accession forms the 
commencement of a new period, the du- 
ration of which is about one hundred 
years, and which is terminated by the 
death of Conrad IV., the last emperor of 
the house of Swabia. It is characteri- 
zed, like the former, by three distinguish- 
ing features in Italian history ; the vic- 
torious struggle of the Lombard and oth- 
er cities for independence, the final es- 
tablishment of a temporal sovereignty 
over the middle provinces by the popes, 
and the union of the kingdom of Naples 
to the dominions of the house of Swabia. 

In Frederick Barbarossa the Italians 
found a very different sovereign from 
the two last emperors, Lothaire and Con- 
rad III., who had seldom appeared in 

Rerum Italic, t. iv., p. 16. And this is the testi- 
mony of a writer who did not live beyond 1085. 
Seventy years more, either of hostility or servitude, 
elapsed, before Lodi was permitted to respire. 

* Otho Frisingensis, p. 710. Muratori, A. D. 
1027. 



Part I.] 



ITALY. 



las 



Italy, and with forces quite inadequate 
to control such insubordinate subjects. 
The distinguished valour and ability of 
this prince rendered a severe and arbi- 
trary temper, and a haughty conceit of 
his imperial rights, more forznidable. He 
beheved, or professed to beheve, the 
magnilicent absurdity, that, as successor 
of Augustus, he inherited the kingdoms 
of the world. In the same right he 
more powerfully, if not more rationally, 
laid claim to the entire prerogatives of 
the Roman emperors over their own sub- 
jects ; and in this the professors of the 
civil law, which was now diligently stud- 
ied, lent him their aid with the utmost 
servihty. To such a disposition the self- 
government of the Lombard cities ap- 
peared mere rebellion. Milan, especial- 
ly, the most renowned of them all, drew 
down upon herself his inveterate re- 
sentment. He found, unfortunately, too 
good a pretence in her behaviour towards 
Lodi. Two natives of that ruined city 
threw themselves at the emperor's feet, 
imploring him, as the ultimate source of 
justice, to redress the wrongs of their 
country. It is a striking proof of the 
terror inspired by Milan, that the consuls 
of Lodi disavowed the complaints of their 
countrymen, and the inhabitants trembled 
at the danger of provoking a summarj^ 
vengeance, against which the imperial 
arms seemed no protection.* The Mi- 
lanese, however, abstained from attack- 
ing the people of Lodi, though they treat- 
ed with contempt the emperor's order to 
leave them at liberty. Frederick, mean- 
while, came into Italy, and held a diet at 
Roncagha, where complaints poured in 
from many quarters against the Milanese. 
Pavia and Cremona, their ancient ene- 
mies, were impatient to renew hostilities 
under the imperial auspices. Brescia, 
Tortona, and Crema were allies, or rath- 
er dependants, of Milan. Frederick soon 
took occasion to attack the latter confed- 
eracy. Tortona was compelled to surren- 
der, and levelled to the ground. But a 
feudal army was soon dissolved ; the 
emperor had much to demand his atten- 
tion at Rome, where he was on ill terms 
with Adrian IV. ; and when the imperial 
troops were withdrawn from Lombardy, 
the Milanese rebuilt Tortona, and expell- 
ed the citizens of Lodi from their dwel- 
lings. Frederick assembled a fresh army, 

* See an interesting account of these circum- 
stances in the narrative of Otho Morena, a citizen 
of Lodi.— Script. Re.r. Ital., t. vi., p. 966. M. Sis- 
mondi, who reproaches Morena for partiaUty to- 
wards Frederick in the Milanese war, should have 
remembered the provocations of Lodi. — Hist, des 
K6publ.ltal., t. ii., p. 102. 



to which almost every city of Lombardy, 
willingly or by force, contributed its mi- 
litia. It is said to have exceeded a hun- 
dred thousand men. The Milanese shut 
themselves up within their walls; and 
perhaps might have defied the imperial 
forces, if their immense population, which 
gave them confidence in arms, had not 
exposed them to a different enemy. Mi- 
lan was obliged by hunger to capitulate, 
upon conditions not very severe, if a van- 
quished people could ever safely rely 
upon the convention that testifies their 
submission. 

[A. D. 1158.] Frederick, after the sur- 
render of Milan, held a diet at Ron- Diet of 
caglia, where the effect of his vie- Roncagiia. 
tories was fatally perceived. The bishops, 
the higher nobility, the lawyers, vied with 
one another in exalting his prerogatives. 
He defined the regalian rights, as they 
were called, in such a manner as to ex- 
clude the cities and private proprietors 
from coining money, and from tolls or ter- 
ritorial dues, which they had for many 
years possessed. These, however, he per- 
mitted them to retain for a pecuniary stip- 
ulation. A more important innovation 
was the appointment of magistrates, with 
the title of podesta, to administer justice, 
concurrently with the consuls ; but he 
soon proceeded to abolish the latter of- 
fice in many cities, and to throw the 
whole government into the hands of his 
own magistrates. He prohibited the cit- 
ies from levying war against each other. 
It may be presumed, that he showed no 
favour to Milan. The capitulation was 
set at naught in its most express provis- 
ions ; a podesta was sent to supersede the 
consuls, and part of the territory taken 
away. Whatever might be the risk of 
resistance, and the Milanese had experi- 
enced enough not to undervalue it, they 
were determined rather to see their liber- 
ties at once overthrown, than gradually 
destroyed by a faithless tyrant. They 
availed themselves of the absence of his 
army to renew the war. Its issue was 
more calamitous than that of the last. 
Almost all Lombardy lay patient under 
subjection. The small town of Crema, 
always the faithful ally of Milan, stood a 
memorable siege against the imperial 
army ; but the inhabitants were ultimate- 
ly compelled to capitulate for their lives, 
and the vindictive Cremonese razed their 
dwellings to the ground.* But all smaller 



* The siege of Crema is told at great length by 
Otto Morena ; it is interesting, not only as a display 
of extraordinary, though unsuccessful, perseve- 
rance and intrepidity, but as the most detailed ac- 
count of the methods used in th attack and de- 



134 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IIL 



Capture and calamities were forgotten, when 
destruction the great city of Milan, worn 
of Milan. ^^^^ gy famine rather than sub- 
dued by force, was reduced to surrender 
at discretion. Lombardy stood in anx- 
ious suspense to know the determination 
of Frederick respecting this ancient me- 
tropolis, the seat of the early Christian 
emperors, and second only to Rome in 
the hierarchy of the Latin church. A 
delay of three weeks excited fallacious 
hopes ; but, at the end of that time, an 
order was given to the Milanese to evac- 
uate their habitations. The deserted 
streets were instantly occupied by the 
imperial army ; the people of Pavia and 
Cremona, of Lodi and Como, were com- 
missioned to revenge themselves on the 
respective quarters of the city assigned 
to them ; and in a few days the pillaged 
churches stood alone amid the ruins of 
what had been Milan. 

[A. D. 1162.] There was now little left 
of that freedom to which Lombardy had 
aspired : it was gone like a pleasant 
dream, and she awoke to the fears and 
miseries of servitude. Frederick obeyed 
the dictates of his vindictive temper, and 
of the policy usual among statesmen. 
He abrogated the consular regimen in 
some even of the cities which had sup- 
ported him, and established his podesta 
in their place. This magistrate was al- 
ways a stranger, frequently not even an 
Italian ; and he came to his office with 
all those prejudices against the people he 
was to govern, which cut off every hope 
of justice and humanity. The citizens of 
Lombardy, especially the Milanese, who 
had been dispersed in the villages ad- 
joining their ruined capital, were unable 
to meet the perpetual demands of tribute. 
In some parts, it is said, two thirds of the 
produce of their lands, the only wealth 
that remained, were extorted from them 
by the imperial officers. It was in vain 
that they prostrated themselves at the 
feet of Frederick. He gave at the best 
only vague promises of redress ; they 
were in his eyes rebels, his delegates had 
acted as faithful officers, whom, even if 
they had gone a little beyond his inten- 
tions, he could not be expected to punish. 

But there still remained, at the heart 
of Lombardy, the strong principle of na- 
tional liberty, imperishable among the 
perishable armies of her patriots, incon- 
sumable in the conflagration of her cities.* 

fence of fortified places, before the introduction of 
artillery— Scrip. Rer. Ital., t. yi., p. 1032-1052. 
• Qua} neque Dardaniis campis potuere perire, 
Nec cum capta capi, uec cum combusta cremari. 

£nnuts. 



Those whom private animosities had led 
to assist the German conqueror, blushed 
at the degradation of their country, and 
at the share they had taken in it. [A. D. 
11G7.1 A league was secretly t„„„„ „, 

r 1 • 1 • 1 /-I League of 

formed, m winch Cremona, one Lombardy 
of the chief cities on the imperi- ^.g^'i^t 
al side, took a prominent part. " ''"'^ 
Those beyond the Adige, hitherto not 
much engaged in the disputes of central 
Lombardy, had already formed a separate 
confederacy, to secure themselves from 
encroachments, which appeared the more 
unjust as they had never borne arms 
against the emperor. [A. D. 1164.] Their 
first successes corresponded to the jus- 
tice of their cause ; Frederick was re- 
pulsed from the territory of Verona, a 
fortunate augury for the rest of Lombar- 
dy. These two clusters of cities, on the 
east and west of the Adige, now uni- 
ted themselves into the famous Lombard 
League, the terms of which were settled 
in a general diet. Their alliance M'as to 
last twenty years ; during which they 
pledged themselves to mutual assistance 
against any one who should exact more 
from them than they had been used to 
perform from the time of Henry, to the 
first coming of Frederick into Italy ; im- 
plying in this the recovery of their elect- 
ive magistracies, their rights of war and 
peace, and those lucrative privileges, 
which, under the name of regalian, had 
been wrested from them in the diet of 
Roncaglia.* 

This union of the Lombard cities was 
formed at a very favourable juncture. 
Frederick had, almost ever since his ac- 
cession, been engaged in open hostility 
with the see of Rome, and was pursuing 
the fruitless policy of Henry IV., who 
had endeavoured to substitute an anti- 
pope of his own faction for the legitimate 
pontiff. In the prosecution of this scheme, 
he had besieged Rome with a great army, 
which, the citizens resisting longer than 
he expected, fell a prey to the autumnal 
pestilence that visits the neighbourhood 



* For the nature and conditions of the Lombard 
league, besides the usual authorities, seeMuratori's 
48th dissertation. The words, a tempore Hen- 
rici Regis usque ad introitum imperatoris Frederi- 
ci, leave it ambiguous which of the Henries was in- 
tended. Muratori thinlis it was Henry IV., be- 
cause the cities then began to be independent. It 
seems, however, natural; when a king is mention- 
ed without any numerical designation, to interpret 
it of the last bearing that name ; as we say King 
William for William the Third. And certamly 
the liberties of Lombardy were more perfect under 
Henry V. than his father ; besides which, the one 
reign might still be remembered, and the other 
rested in tradition. The question, however, is of 
little moment. 



llRT I.] 



ITALY. 



135 



of that capital. The flower of German 
nobihty was cut off by this calamity, and 
the emperor recrossed the Alps, entirely 
unable for the present to withstand the 
Lombard confederacy. Their first overt 
act of insurrection was the rebuilding of 
Milan ; the confederate troops all joined 
in this undertaking; and the Milanese, 
still numerous, though dispersed and per- 
secuted, revived as a powerful republic. 
Lodi was compelled to enter into the 
league ; Pavia alone continued on the im- 
perial side. As a check to Pavia, and to 
the Marquis of Montferrat, the most po- 
tent of the independent nobility, the Lom- 
bards planned the erection of a new city 
between the confines of these two ene- 
mies, in a rich plain to the south of the 
Po, and bestowed upon it, in compliment 
to the pope, Alexander IIL, the name of 
Alessandria. Though, from its hasty 
construction, Alessandria was, even in 
that age, deemed rude in appearance, it 
rapidly became a thriving and populous 
city.* The intrinsic energy and resour- 
ces of Lombardy wei-e now made mani- 
fest. Frederick, who had triumphed by 
their disunion, was unequal to contend 
against their league. After several years 
of indecisive war, the emperor invaded 
the Milanese territory, but the confeder- 
ates gave him battle, and gained a com- 
Batiie of plete victory at Legnano. [A. D. 
Legnano. 1176.] Frederick escaped alone 
and disguised from the field, with little 
hope of raising a fresh army, though still 
reluctant from shame to acquiesce in the 
freedom of Lombardy. He was at length 
persuaded, through the mediation of the 
republic of Venice, to consent to a truce 
of six years, the provisional terms of 
which were all favourable to the league. 
It was weakened, however, by the de- 
fection of some of its own members ; 
Cremona, which had never cordially uni- 
ted with her ancient enemies, made sep- 
arate conditions with Frederick, and suf- 
fered herself to be named among the cit- 
ies on the imperial side in the armistice. 
Tortona, and evea Alessandria, followed 
the same course during the six years of 
its duration ; a fatal testimony of unsub- 
dued animosities, and omen of the calam- 
ities of Italy. At the expiration of the 
truce, Frederick's anxiety to secure the 
crown for his son overcame his pride, 



* Alessandria was surnamed, in derision, della 
paglia : from the tliatch with which the houses 
were covered. Frederick was very desirous to 
change its name to Caesarea, as it is actually call- 
ed in the peace of Constance, being at that time 
on the imperial side But it soon recovered its 
former appellation. 



and the famous peace of Con- Peace oi 
stance [A. D. 1183] estabhshed Constance 
the Lombard republics in real independ- 
ence. 

By the treaty of Constance, the cities 
were maintained in the enjoyment of all 
the regalian rights, whether within their 
walls or in their district, which they 
could claim by usage. Those of levying 
war, of erecting fortifications, and of 
administering civil and criminal justice, 
were specially mentioned. The nomina- 
tion of their consuls, or other magistrates, 
was left absolutely to the citizens ; but 
they were to receive the investiture of 
their office from an imperial legate. The 
customary tributes of provision during 
the emperor's residence in Italy were 
preserved ; and he was authorized to ap- 
point in every city a judge of appeal in 
civil causes. The Lombard league was 
confirmed, and the cities were permitted 
to renew it at their own discretion ; but 
they were to take every ten years an 
oath of fidelity to the emperor. This just 
compact preserved, along with every se- 
curity for the liberties and welfare of the 
cities, as much of the imperial preroga- 
tives as could be exercised by a foreign 
sovereign, consistently with the people's 
happiness.* 

The successful insurrection of Lom- 
bardy is a memorable refutation of that 
system of policy to which its advocates 
gave the appellation of vigorous, and 
which they perpetually hold forth as the 
only means through which a disaffected 
people are to be restrained. By a certain 
class of statesmen, and by all men of harsh 
and violent disposition, measures of con- 
ciliation, adherence to the spirit of trea- 
ties, regard to ancient privileges, or to 
those rules of moral justice which are 
paramount to all positive right, are al- 
ways treated with derision. Terror is 
their only specific, and the physical inar 
bility to rebel their only security for alle 
giance. But if the razing of cities, the 
abrogation of privileges, the empoverish- 
ment and oppression of a nation, could 
assure its constant submission, Frederick 
Barbarossa would never have seen the 
militia of Lombardy arrayed against him 
at Legnano. Whatever may be the pres- 
sure upon a conquered people, there will 
come a moment of their recoil. Nor is 
it material to allege, in answer to the 
present instance, that the accidental de- 
struction of Frederick's army by disease 
enabled the cities of Lombardy to suc- 
ceed in their resistance. The fact may 

* Muratori, Antiquitates Italiae, Diss. 50. 



136 



EUROPE DURING THE MIDDLE AGES. 



[Chap. TIL 



well be disputed ; since Lombardy, when 
united, appears to have been more than 
equal to a contest with any German force 
that could have been brought against her ; 
but, even if we admit the effect of this 
circumstance, it only exhibits the preca- 
riousness of a policy, which collateral 
events are always liable to disturb. Prov- 
idence reserves to itself various means, 
by which the bonds of the oppressor may 
be broken; and it is not for human saga- 
city to anticipate, whether the army of a 
conqueror shall moulder in the unwhole- 
some marshes of Rome, or stiffen with 
frost in a Russian winter. 

The peace of Constance presented a 
noble opportunity to the Lombards of 
establishing a permanent federal union 
of small republics ; a form of government 
congenial from the earliest ages to Italy, 
and that, perhaps, under which she is 
again destined one day to flourish. They 
were entitled by the provisions of that 
treaty to preserve their league, the basis 
of a more perfect confederacy, which the 
course of events would have emancipated 
from every kind of subjection to Germa- 
ny.* But dark, long-cherished hatreds, 
and that implacable vindictiveness which, 
at least in former ages, distinguished the 
private manners of Italy, deformed her 
national character, which can only be the 
aggregate of individual passions. For 
revenge she threw away the pearl of 
great price, and sacrificed even the rec- 
ollection of that liberty, which had 
stalked like a majestic spirit among the 
ruins of Milan. f It passed away, that 
high disdain of absolute power, that stead- 
iness and self-devotion, which raised the 
half-civilized Lombards of the twelfth 
century to the level of those ancient re- 
publics, from whose history our first no- 
tions of freedom and virtue are derived. 
The victim by turns of selfish and san- 
guinary factions, of petty tyrants, and of 
foreign invaders, Italy has fallen like a 

* Though there was no permanent diet of the 
Lombard league, the consuls and podestas of the 
respective cities composing it occasionally met in 
congress, to deliberate upon measures of general 
safety. Thus assembled, they were called Rec- 
tores Societatis Lombardia?. It is evident that, if 
Lombardy had continued in any degree to preserve 
the spirit of union, this congress might readdy 
have become a permanent body, like the Helvetic 
diet, with as extensive powers as are necessary in 
a federal constitution. — Muratori, Antichita Ital- 
iane, t. iii., p. 126, Dissert. 50. Sismondi, t. ii., 
p. 189. 

t Anzi girar la liberta mirai, 
E baciar lieta ogni ruina, e dire, 
Ruine si, ma servitu non mai. 

Gaetana Passerini (ossia piiittosto Giovan Bat- 
tista Pastorini) in Mathias, Componimentt 
Lirici, vol. iii., p. 331. 



star from its place in heaven ; she has 
seen her harvests trodden down by the 
horses of the stranger, and the blood of 
her children wasted in quarrels not tlieir 
own ; Conquei'iitg or conquered, in the in- 
dignant language of her poet, still alike a 
slave* a long retribution for the tyranny 
of Rome. 

Frederick did not attempt to molest 
the cities of Lombardy in the en- Aflairs of 
joyment of those privileges con- Siciiy. 
ceded by the treaty of Constance. His 
ambition was diverted to a new scheme 
for aggrandizing the house of Svvabia, by 
the marriage of his eldest son, Henry, 
with Constance, the aunt and heiress of 
William II., king of Sicily. That king- 
dom, which the first monarch, Roger, 
had elevated to a high pitch of renown 
and power, fell into decay through the 
misconduct of his son William, surnamed 
the Bad, and did not recover much of its 
lustre under the second William, though 
styled the Good. His death without 
issue was apparently no remote event, 
and Constance was the sole legitimate 
surviver of the royal family. It is a cu- 
rious circumstance, that no hereditary 
kingdom appears absolutely to have ex- 
cluded females from its throne, except 
that which, from its magnitude, was of 
all the most secure from falling into the 
condition of a province. The Sicilians 
felt too late the defect of their constitu- 
tion, which permitted an independent 
people to be transferred, as the dowry of 
a woman, to a foreign prince, by whose 
ministers they might justly expect to be 
insulted and oppressed. Henry, whose 
marriage with Constance took place in 
1186, and who succeeded in her right to 
the throne of Sicily three years afterward, 
was exasperated by a courageous, but un • 
successful eflfort of the Norman barons, 
to preserve the crown for an illegitimate 
branch of the royal family ; and his reign 
is disgraced by a series of atrocious cru- 
elties. The power of the house of Swa- 
bia was now at its zenith on each side 
of the Alps ; Henry received the Impe- 
rial crown the year after his father's 
death in the third crusade, and even pre- 
vailed upon the princes of Germany to 
elect his infant son Frederick as his suc- 
cessor. But his own premature decease 
clouded the prospects of his family : Con- 
stance survived him but a year; and a 
child of four years old was left with the 
inheritance of a kingdom, which his fa- 
ther's severity had rendered disaffected, 

* Per servir sempre, o vincitrice o vinta. — Fib- 
caja. 



Part 1 J 



ITALY. 



137 



and which the leaders of German merce- 
naries in his service desolated and dispu- 
ted. 

During the minority of Frederick II., 
Innocent from 1198 to 1216, the papal chair 
i'^- was filled by Innocent III. ; a 
name second only, and hardly second, to 
that of Gregory VII. Young, noble, and 
intrepid, he united with the accustomed 
spirit of ecclesiastical usurpation, which 
no one had ever carried to so high a 
point, the more worldly ambition of con- 
solidating a separate principality for the 
Holy See in the centre of Italy. The 
real or spurious donations of Constantine, 
Pepin, Charlemagne, and Louis, had given 
rise to a perpetual claim, on the part of 
the popes, to very extensive dominions : 
but little of this had been effectuated, and 
in Rome itself they were thwarted by 
the prefect, an officer who swore fidelity 
to the emperor, and by the insubordinate 
spirit of the people. In the very neigh- 
bourhood, the small cities owned no sub- 
jection to the capital, and were probably 
as much self-governed as those of Lom- 
bardy. One is transported back to the 
earliest times of the repubhc, in reading 
of the desperate wars between Rome 
and Tibur or Tusculum, neither of which 
was subjugated till the latter part of the 
twelfth century. At a further distance 
were the dutchy of Spoleto, the marcli 
of Ancona, and what had been the exar- 
chate of Ravenna, to all of which the 
popes had more or less grounded pre- 
tensions. Early in the last-mentioned 
age, the famous Countess Matilda, to 
whose zealous protection Gregory VII. 
had been eminently indebted during his 
long dispute with the emperor, granted 
the reversion of all her possessions to 
the Holy See, first in the lifetime of 
Gregory, and again under the pontificate 
Bequest of of Paschal III. These were 
the Countess very extensive, and held bydif- 
Mat.ida. {QyQni titles. Of her vast impe- 
rial fiefs, Mantua, Modena, and Tus- 
cany, she certainly could not dispose. 
The dutchy of Spoleto and march of An- 
cona were supposed to rest upon a differ- 
ent footing. I confess myself not dis- 
tinctly to comprehend the nature of this 
part of her succession. These had been 
formerly among the great fiefs of the 
kingdom of Italy. But if I understand it 
rightly, they had tacitly ceased to be sub- 
ject to the emperors, some years before 
they were seized by Godfrey of Lorraine, 
father-in-law and stepfather of Matilda. 
To his son, her husband, she succeeded 
in the possession of those countries. 
They are commonly considered as her 



allodial or patrimonial property ; yet it 
is not easy to see how, being herself a 
subject of the empire, she could transfer 
even her allodial estates from its sover- 
eignty. Nor, on the other hand, can it 
apparently be maintained, that she was 
lawful sovereign of countries which had 
not long since been imperial fiefs, and 
the suzerainty over which had never 
been renounced. The original title of 
the Holy See, therefore, does not seem 
incontestable, even as to this part of Ma- 
tilda's donation. But I state with hesita- 
tion a difficulty, to which the authors I 
have consulted do not advert.* It is cer- 
tain, however, that the emperors kept 
possession of the whole during the 
twelfth century ; and treated both Spole- 
to and Ancona as parts of the empire, 
notwithstanding continual remonstrances 
from the Roman pontiffs. Frederick Bar- 
barossa, at the negotiations of Venice in 
1177, promised to restore the patrimony 
of Matilda in fifteen years ; but, at the 
close of that period, Henry VI. was not 
disposed to execute this arrangement, 
and granted the county m fief to some 
of his German followers. Upon his 
death, the circumstances were favourable 
to Innocent III. The infant king of Si- 
cily had been intrusted by Constance to 
his guardianship. A double election of 
Philip, brother of Henry VI., and of Otho, 
duke of Brunswick, engaged the princes 
of Germany, who had entirely overlooked 
the claims of young Frederick, in a doubt- 
ful civil war. Neither party was in a 
condition to enter Italy ; and the impe- 
rial dignity Avas vacant for several years, 
till, the death of Philip removing one 
competitor, Otho IV., whom the pope 
had constantly favoured, was crowned 
emperor. During this interval, the Ital- 
ians had no superior; and Innocent 
availed himself of it to maintain the pre- 
tensions of the see. These he backed 
by the production of rather a questiona- 
ble document, the will of Henry VI., said 
to have been found among the baggage 
of Marquard, one of the German soldiers, 
who had been invested with fiefs 
by the late emperor. The cit- Eceie^sias- 
ies of what we now call the ec- reTm^ed by 
clesiastical sta-te had in the innocent 
twelfth century their own muni- '"" 

* It is almost hopeless to look for explicit infor- 
mation upon the rights and pretensions of the Ro- 
man see in Italian writers even of the eighteenth 
century. Muratori, the most learned, and, upon 
the whole, the fairest of them ail, moves cautiously 
over this ground; except, when the claims of 
Rome happen to clash with those of the house of 
Este. But I have not been able to satisfy myself 



138 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill 



cipal government, like those of Lombar- 
dy; but they were far less able to assert 
a complete independence. They gladly, 
therefore, put themselves under the pro- 
tection of the Holy See, which held out 
some prospect of securing them from 
Marquard, and other rapacious partisans, 
without disturbing their internal regula- 
tions. Thus the dutchy of Spoleto and 
march of Ancona submitted to Innocent 
III. ; but he was not strong enough to 
keep constant possession of such exten- 
sive territories, and some years after- 
ward adopted the prudent course of 
granting Ancona in fief to the Marquis of 
Este. He did not, as may be supposed, 
neglect his authority at home ; the pre- 
fect of Rome was now compelled to 
swear allegiance to the pope, which put 
an end to the regular imperial supremacy 
over that city ; and the privileges of the 
citizens were abridged. This is the 
proper era of that temporal sovereignty 
which the bishops of Rome possess over 
their own city, though still prevented by 
various causes, for nearly three centu- 
ries, from becoming unquestioned and 
unlimited. 

The policy of Rome was now more 
clearly defined than ever. In order to 
preserve what she had thus suddenly 
gained rather by opportunity than 
strength, it was her interest to enfeeble 
the imperial power, and consequently to 
maintain the freedom of the Italian re- 
League of publics. Tuscany had hitherto 
Tuscany, been ruled by a marquis of the 
emperor's appointment, though her cities 
were flourishing, and, within themselves, 
independent. In imitation of the Lom- 
bard confederacy, and impelled by Inno- 
cent HI., they now (with the exception 
of Pisa, which was always strongly at- 
tached to the empire) formed a similar 
league for the preservation of their rights. 
In this league the influence of the pope 
was far more strongly manifested than 
in that of Lombardy. Although the lat- 
ter had been in alliance with Alexander 
III., and was formed during the height 
of his dispute with Frederick, this eccle- 
siastical quarrel mingled so little in their 
struggle for liberty, that no allusion to it 
is found in the act of their confederacy. 
But the Tuscan union was expressly es- 
tablished " for the honour and aggran- 
dizement of the apostolic see." The 
members bound themselves to defend 



the possessions and rights of the church; 
and not to acknowledge any king or em- 
peror without the approbation of the 
supreme pontiff".* The Tuscans, accord- 
ingly, were more thoroughly attached to 
the church party than the Lombards, 
whose principle was animosity towards 
the house of Swabia. Hence, when In- 
nocent III., some time after, supported 
Frederick II. against the Emperor Otho 
IV., the Milanese and their allies were 
arranged on the imperial side; but the 
Tuscans continued to adhere to the pope. 
In the wars of Frederick Barbarossa 
against Milan and their allies. Factions of 
we have seen the cities of Lorn- cueirs and 
bardy divided, and a considera- <^'"t>'^i'ns. 
ble number of them firmly attached to 
the imperial interest. It does not appear, 
I believe, from history, though it is by no 
means improbable, that the citizens were 
at so early a time divided among them- 
selves, as to their line of public policy, 
and that the adherence of a particular 
city to the emperor, or to the Lombard 
league, was only, as proved afterward 
the case, that one faction or another ac- 
quired an ascendency in its councils. 
But jealousies long existing between the 
difi"erent classes, and only suspended by 
the national struggle which terminated 
at Constance, gave rise to new modifica- 
tions of interests, and new relations to- 
wards the empire. About the year 1200, 
or perhaps a httle later, the two leading 
parties which divided the cities of Lom- 
bardy, and whose mutual animosity, hav- 
ing no general subject of contention, re- 
quired the association of a name to di- 
rect as well as invigorate its prejudices, 
became distinguished by the celebrated 
appellations of Guelfs and Ghibelins ; the 
former adhering to the papal side, the 
latter to that of the emperor. These 
names were derived from Germanj^ and 
had been the rallying word of faction for 
more than half a century in that country, 
before they were transported to a still 
more favourable soil. The Guelfs took 
their name from a very illustrious family, 
several of whom had successively been 
dukes of Bavaria in the tenth and eleventh 
centuries. The heiress of the last of 
these intermarried with a younger son of 
the house of Este, a noble family settled 
near Padua, and possessed of great es- 
tates on each bank of the lower Po. 
They gave birth to a second line of 



by the perusal of some dry and tedious disserta- 
tions in St. Marc (Abrcge Chronologique de I'Hist. 
de ritalie, t. iv.), who, with learning scarcely infe- 
rior to that of JViuratori, possessed more opportu- 
nitv and inclination to speak out. 



* Quod possessiones et jura sacrosanctas ecclesioa 
bona fide defenderent ; et quod nullum in regem 
aut imperalorem reciperent, nisi quem Rornanus 
pontifex approbaret. — Muratori, Dissert. 48 (Latin 
I. iv., p. 320; Italian, t. iii., p. 112). 



Part I.] 



ITALY. 



139 



Guelfs, from whom the royal house of 
Brunswick is descended. The name of 
Ghibelin is derived from a village in 
Franconia, whence Conrad the Salic 
came, the progenitor, through females, 
of the Swabian emperors. At the elec- 
tion of Lothaire, in 1125, the Swabian 
family were disappointed of what they 
considered almost an hereditary posses- 
sion ; and at this time an hostility appears 
to have commenced between them and 
the house of Guelf, who were nearly re- 
lated to Lothaire. Henry the Proud, and 
his son, Henry the Lion, representatives 
of the latter family, were frequently per- 
secuted by the Swabian emperors : but 
their fortunes belong to the history of 
Germany.* Meanwhile the elder branch, 
though not reserved for such glorious 
destinies as the Guelfs, continued to 
flourish in Italy ; the marquises of Este 
were by far the most powerful nobles in 
eastern Lombardy, and about the end of 
the twelfth century began to be consider- 
ed as heads of the church party in their 
neighbourhood. They were frequently 
chosen to the office of podesta, or chief 
magistrate, by the cities of Romagna ; 
and in 1208, the people of Ferrara set the 
fatal example of sacrificing their free- 
dom for tranquillity, by electing Azzo 
VIL, marquis of Este, as their lord or 
sovereign. t 

Olho IV. was son of Henry the Lion, 
Otho IV. ''-nd consequently head of the 
Guelfs. On his obtaining the im- 
perial crown, the prejudices of Italian 
factions were diverted out of their usual 
channel. He was soon engaged in a 
quarrel with the pope, whose hostility to 
the empire was certain, into whatever 
hands it might fall. In Milan, however, 
and generally in the cities which had be- 
longed to the Lombard league against 
Frederick I., hatred of the house of Swa- 
bia prevailed more than jealousy of the 
imperial prerogatives ; they adhered to 
names rather than to principles, and sup- 
ported a Guelf emperor even against the 
pope. Terms of this description, having 
no definite relation to principles which it 
might be troublesome to learn and defend, 
are always acceptable to mankind, and 
have the peculiar advantage of precluding 
altogether that spirit of compromise and 
accommodation, by which it is sometimes 
endeavoured to obstruct their tendency 



* The German origin of these celebrated fac- 
tions is clearly proved by a passage in Otho of 
Frismgen, who lived half a century before we find 
the denominations transferred to Italy. — Struvius, 
Corpus Hist. German., p. 378, and Muratori, A. D. 
1152. t Sismondi, t. ii., p. 329. 



to hate and injure each other. From this 
time, every city, and almost every citi- 
zen, gloried in one of these barbarous 
denominations. In several cities the im- 
perial party predominated through hatred 
of their neighbours, who espoused that 
of the church. Thus the inveterate feuds 
between Pisa and Florence, Modena and 
Bologna, Cremona and Milan, threw them 
into opposite factions. But there was in 
every one of these a strong party against 
that which prevailed, and consequently a 
Guelf city frequently became Ghibelin, 
or conversely, according to the fluctua • 
tions of the time.* 

The change to which we have advert- 
ed in the politics of the Guelf party last- 
ed only during the reign of Otho IV. 
When the heir of the house of prederick n 
Swabia grew up to manhood, 
Innocent, who, though his guardian, had 
taken little care of his interests, as long 
as he flattered himself with the hope of 
finding a Guelf emperor obedient, placed 
the young Frederick at the head of au 
opposition composed of cities always at- 
tached to his family, and of such as im- 
plicitly followed the see of Rome. He 
met with considerable success both in 
Italy and Germany, and, after the death 
of Otho, received the imperial crown. 
But he had no longer to expect any as- 
sistance from the pope who conferred it. 
Innocent was dead, and Honorius III., 
his successor, could not behold without 
apprehension the vast power of Frede- 
rick, supported in Lombardy by a faction 



* For the Guelf and Ghibelin factions, besides 
the historians, the 51st dissertation of Muratori 
should be read. There is some degree of inaccu- 
racy in his language, where he speaks of these dis- 
tractions expiring at the beginning of the fifteenth 
century. Quel secolo, 6 vero, abbondo anch' esso 
di molte guerre, ma nulla si opero sotto nome o 
pretesto delle fazioni suddette. Solamente riten- 
nero esse piede in alcune private famiglie. — Anti- 
chita Italiane, t. iii., p. 148. But certainly the 
names of Guelf and Ghibelin, as party distinctions, 
may be traced all through the fifteenth century. 
The former faction showed itself distinctly in the 
insurrection of the cities subject to Milan, upon the 
death of Galeazzo Visconti, in 1404. It appeared 
again in the attempt of the Milanese to reestabhsh 
their republic in 1447. — Sismondi, t. is., p. 334. So 
in 1477, Ludovico Sforza made use of Ghibelin 
prejudices to exclude the regent Bonne of Savoy as 
a Guelf— Sismondi, t. xi., p. 79. In the ecclesias- 
tical state, the same distinctions appear to have 
been preserved still later. Stefano Infessura, in 
1487, speaks familiarly of them. — Script Ker. Ital., 
t. iii., p. 1221. And even in the conquest of Milan 
by Louis XII., in 1500, the Guelfs ol that city are 
represented as attached to the French party, while 
the Ghibelins abetted Ludovico Sforza and Maxi- 
milian.— -Guicciardini, p. 399. Other passages iu 
the same historian show these factions to have been 
alive in various parts of Italy. 



140 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



which balanced that of the church, and 
menacing the ecclesiastical territories on 
the other side by the possession of Naples 
and Sicily. This kingdom, feudatory to 
Rome, and long her firmest ally, was now, 
by a fatal connexion which she had not 
been able to prevent, thrown into the 
scale of her most dangerous enemy. 
Hence the temporal dommion which In- 
nocent III. had taken so much pains to 
establish, became a very precarious pos- 
session, exposed on each side to the at- 
tacks of a power that had legitimate pre- 
tensions to almost every province com- 
posing it. The life of Frederick II. was 
wasted in an unceasing contention with 
the church, and with his Italian subjects, 
whom she excited to rebellions against 
him. Without inveighing, like the popish 
writers, against this prince, certainly an 
cncourager of letters, and endowed with 
many eminent qualities, we may lay to 
his charge a good deal of dissimulation ; 
1 will not add ambition, because I am not 
aware of any period in the reign of Fred- 
erick when he was not obliged to act on 
his defence against the aggression of oth- 
ers. But if he had been a model of vir- 
tues, such men as Honorius III., Gregory 
IX., and Innocent IV., the popes with 
whom he had successively to contend, 
would not have given him respite, while 
he remained master of Naples, as well as 
the empire.* 

It was the custom of every pope to 
urge princes into a crusade, which the 
condition of Palestine rendered indispen- 
sable, or, more properly, desperate. But 
this great piece of supererogatory devo- 
tion had never yet been raised into an ab- 
solute duty of their station, nor had even 
private persons been ever required to 
take up the cross by compulsion. Ho- 
norius III., however, exacted a vow from 
Frederick, before he conferred upon him 
the imperial crown, that he would under- 
take a crusade for the deliverance of Je- 
rusalem. Frederick submitted to this en- 



* The rancour of bigoted Catholics against 
Frederick has hardlj' subsided at the present day. 
A very moderate commendation of him in Tirabos- 
chi, vol. iv., t. 7, was not suffered to pass uncon- 
tradicted by the Roman editor. And though Mu- 
ratori shows quite enough prejudice against that 
emperor's character, a tierce Roman bigot, whose 
animadversions are printed in the 17th volume of 
his annals (8vo edition), flies into paroxysms of fury 
at every syllable that looks like moderation. It is 
well known that, although the public policy of 
Rome has long displayed the pacific temper of 
weakness, the thermometer of ecclesiastical senti- 
ment in that city stands very nearly as high as in 
the thirteenth century. Giannone, who suffered 
for his boldness, has drawn Frederick II. very fa- 
vourably, perhaps too favourably, in the 16Lh and 
17th books of the Istoria Civile di Napoli. 



gagement, which perhaps he never de- 
signed to keep, and certainly endeavour- 
ed afterward to evade. Tliough he be- 
came by marriage nominal king of Jeru- 
salem,* his excellent understanding was 
not captivated with so barren a prospect, 
and at length his delays in the perform- 
ance of his vow provoked Gregory IX. 
to issue against him a sentence of ex- 
communication. Such a thunderbolt was 
not to be lightly regarded ; and Frederick 
sailed the next year for Palestine. But 
having disdained to solicit absolution for 
what he considered as no crime, the 
court of Rome was excited to still fiercer 
indignation against this profanation of a 
crusade by an excommunicated sovereign. 
Upon his arrival in Palestine, he receiv- 
ed intelligence that the papal troops had 
broken into the kingdom of Naples. No 
one could rationally have blamed Freder- 
ick if he had quitted the Holy Land as 
he found it ; but he made a treaty with 
the Saracens, which, though by no means 
so disadvantageous as under all the cir- 
cumstances might have been expected, 
served as a pretext for new calumnies 
against him in Europe. The charge of 
irreligion, eagerly and successfully prop- 
agated, he repelled by persecuting edicts 
against heresy, that do no great honour 
to his memory, and availed him little at 
the time. Over his Neapolitan dominions 
he exercised a rigorous government, ren- 
dered perhaps necessary by the levity 
and insubordination characteristic of the 
inhabitants, but which tended, through the 
artful representations of Honorius and 
Gregory, to alarm and alienate the Italian 
republics. 

A new generation had risen up in Loni- 
bardy since the peace of Con- nj^ ^.^^g 
stance, and the prerogatives re- with the 
served by that treaty to the em- Lombards. 

* The second wife of Frederick was lolante, or 
Violante, daughter of John, count of Brienne, by 
Maria, eldest daughter and heiress of Isabella, wife 
of Conrad, marquis of Montferrat. This Isabella 
was the youngest daughter of Almaric or Amaury, 
king of .Jerusalem, and by the deaths of her broth- 
er Baldwin IV., of her eldest sister Sibilla, wife of 
Guy de Lusignan, and that sister's child Baldwin V., 
succeeded to a claim upon Jerusalem, which, since 
the victories of Saladin, was not very protilable. It 
is said that the kings of Naples deduce their title 
to that sounding inheritance from this marriage of 
Frederick (Giannone,!. xvi., c. 2), but the extinc- 
tion of Frederick's posterity must have, strictly 
speaking, put an end to any right derived from 
him ; and Giannone himself indicates abetter title 
by the cession of Maria, a princess of Antioch, and 
legitimate heiress of Jerusalem, to Charles of An- 
jou, in 1272. How far indeed this may have been 
regularly transmitted to thepresent King of Naples 
I do not know, and am sure that it is not worth 
while to inquire. 



Pakt I.] 



ITALY 



141 



Dire were so seldom called into action, 
that few cities were disposed to recol- 
lect their existence. They denominated 
themselves Guelfs or Ghibelins, accord- 
ing to habit, and out of their mutual op- 
position, but without much reference to 
the empire. Those however of the for- 
mer party, and especially Milan, retained 
their antipathy to the house of Swabia. 
Though Frederick II. was entitled, as far 
as established usage can create a right, to 
the sovereignty of Italy, the Milanese 
would never acknowledge him, nor per- 
mit his coronation at Monza, according 
to ancient ceremony, with the iron crown 
of the Lombard kings. The pope foment- 
ed, to the utmost of his power, this dis- 
aflected spirit, and encouraged the Lom- 
bard cities to renew their former league. 
This, although conformable to a provis- 
ion in the treaty of Constance, was man- 
ifestly hostile to Frederick, and may be 
considered as the commencement of a 
second contest between the republican 
cities of Lombardy and the empire. But 
there was a striking difference between 
this and the former confederacy against 
Frederick Barbarossa. In the league of 
1167, almost every city, forgetting all 
smaller animosities in the great cause of 
defending the national privileges, contrib- 
uted its share of exertion to sustain that 
perilous conflict; and this transient una- 
nimity in the people so distracted by in- 
ternal faction as tlae Lombards, is the su- 
rest witness to the justice of their under- 
taking. Sixty years afterward, their war 
against the second Frederick had less of 
provocation and less of public spirit. It 
was in fact a party struggle of Guelf and 
Ghibelin cities, to which the names of the 
church and the empire gave more of dig- 
nity and consistence. 

The republics of Italy in the thirteenth 
century were so numerous and 
menTof' independent, and their revolutions 
Lombard so frequent, that it is a difficult 
cities, matter to avoid confusion in fol- 
lowing their history. It will give more 
arrangement to our ideas, and at the same 
time illustrate the changes that took place 
in these little states, if we consider them 
as divided into four clusters or constella- 
tions, not indeed unconnected one with 
another, yet each having its own centre 
of motion, and its own boundaries. The 
first of these we may suppose formed of 
the cities in central Lombardy, between 
the Sessia and the Adige, the Alps and 
the Ligurian mountains ; it comprehends 
INIilan-, Cremona, Pavia, Brescia, Berga- 
mo, Parma, Piacenza, Mantua, Lodi, 
Alessandria, and several others less dis- 



tinguished. These were the original seats 
of Italian liberty, the great movers in the 
wars of the elder Frederick. Milan was 
at the head of this cluster of cities, and 
her influence gave an ascendency to the 
Guelf party ; she had, since the treaty of 
Constance, rendered Lodi and Pavia al- 
most her subjects, and was in strict 
union with Brescia and Piacenza. Par- 
ma, however, and Cremona, were unsha- 
ken defenders of the empire. In the sec- 
ond class we may place the cities of the 
March of Verona, between the Adige and 
the frontiers of Germany. Of these there 
were but four worth mentioning : Vero- 
na, Vicenza, Padua, and Treviso. The 
citizens of all the four were inclined to 
the Guelf interests ; but a powerful body 
of rural nobility, who had never been 
compelled, like those upon the upper Po, 
to quit their fortresses in the hilly coun- 
try, or reside within the walls, attached 
themselves to the opposite denomina- 
tion.* Some of them obtained very great 
authority in the civil feuds of these four 
republics; and especially two brothers, 
Eccelin and Alberic da Romano, of a rich 
and distinguished family, known for its 
devotion to the empire. By extraordina- 
ry vigour and decision of character, by 
dissimulation and breach of oaths, by the 
intimidating eff"ects of almost unparalleled 
cruelty, Eccelin da Romano became after 
some years the absolute master of three 
cities, Padua, Verona, and Vicenza ; and 
the Guelf party, in consequence, was en- 
tirely subverted beyond the Adige during 
the continuance of his tyranny. f An- 
other cluster was composed of the cities 
in Romagna; Bologna, Imola, Faenza, 
Ferrara, and several others. Of these 
Bologna was far the most powerful, and, 
as no city was more steadily for the in- 
terests of the church, the Guelfs usually 
predominated in this class ; to which also 
the influence of the house of Este not a 
little contributed. Modena, though not 
geographically within the limits of this 
division, may be classed along with it, 
from her constant wars with Bologna. 

* Sismondi, t. ii., p. 222. 

+ The cruelties of Eccelin excited universal hor- 
ror, in an age when inhumanity towards enemies 
was as common as fear and revenge could make it. 
It was a usual trick of beggars, all over Italy, to 
pretend that they had been deprived of their eyes 
or limbs by the Veronese tyrant. There is hardly 
an instance in European history of so sanguinary 
a government subsisting for more than twenty 
years. The crimes of Eccelin are remarkably well 
authenticated by the testimony of several contem- 
porary writers, who enter into great details. Most 
of these are found in the seventh volume of Scrip- 
tores Rerum Italicarum. Sismondi, t. iii., p. 33, 
111, 203, is more full than any of the modems. 



142 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill 



A fourth class will comprehend the whole 
of Tuscany, separated almost entirely 
from the politics of Lombardy and Ro- 
magna. Florence headed the Guelf cit- 
ies in this province, Pisa the Ghibelin. 
The Tuscan union was formed, as has 
been said above, by Innocent III., and 
was strongly inclined to the popes ; but 
gradually the Ghibelin party acquired its 
share of influence ; and the cities of Sie- 
na, A rezzo, and Lucca, shifted their poli- 
cy, according to external circumstances 
or the fluctuations of their internal fac- 
tions. The petty cities in the region of 
Spoleto and Ancona hardly perhaps de- 
serve the name of republics ; and Genoa 
does not readily fall into any of our four 
classes, unless her wars with Pisa may 
be thought to connect her with Tuscany.* 

After several years of transient hostil- 
ity and precarious truce, the Guelf cities 
of Lombardy engaged in a regular and 
protracted war with Frederick II., or, 
more properly, with their Ghibelin adver- 
saries. Few events of this contest de- 
serve particular notice. Neither party 
ever obtained such decisive advantages 
as had alternately belonged to Frederick 
Barbarossa and the Lombard confedera- 
cy, during the war of the preceding cen- 
tury. A defeat of the Milanese by the 
emperor, at Corte Nuova, in 1237, was 
balanced by his unsuccessful siege of 
Brescia the next year. The Pisans as- 
sisted Frederick to gain a great naval vic- 
tory over the Genoese fleet in 1241 ; but 
he was obliged to rise from the blockade 
of Parma, which had left the standard of 
Ghibelinism in 1248. Ultimately, how- 
ever, the strength of the house of Swabia 
was exhausted by so tedious a struggle ; 
the Ghibelins of Italy had their vicissi- 
tudes of success ; but their country, and 
even themselves, lost more and more of 
the ancient connexion with Germany, 

In this resistance to Frederick II., the 
Lombards were much indebted to the 



* I have taken no notice of Piedmont in this divis- 
ion. The history of that country is far less eluci- 
dated by ancient or modern writers than that of 
other parts of Italy. It was at this time divided 
between the counts of Savoy and marquises of 
Montferrat. But Asti, Chieri, and Turin, especial- 
ly the two former, appear to have had a republican 
form of government. They were however not ab- 
solutely mdependent. The only Piedmontese city 
that can properly be considered as a separate state, 
in the thirteenth century, was Vercelli ; and even 
there the bishop seems to have possessed a sort of 
temporal sovereignty. Denina, author of the Ri- 
voluzioni (i'ltalia, first printed in 1769, lived to pub- 
lish in his old age a history of western Italy, or 
Piedmont, from which I have gleaned a few facts. 
— Istoriadeir Italia Occidentale; Torino, 1809, 6 
vols. 8vo. 



constant support of Gregory IX. and his 
successor. Innocent I^'. ; and the Guelf, 
or the church party, were used as sy-' 
nonymous terms. These pontifl's bore 
an unquenchable hatred to the house of 
Swabia. No concessions mitigated their 
animosity ; . no reconciliation was sincere. 
Whatever faults may be imputed to Fred- 
erick, it is impossible for any one, not 
blindly devoted to the court of Rome, to 
deny, that he was iniquitously proscribed 
by her unprincipled ambition. His real 
crime was the inheritance of his ances- 
tors, and the name of the house of Swa- 
bia. In 1239, he was excommunicated 
by Gregory IX. To this he was tolera- 
bly accustomed by former experience ; 
but the sentence was attended by an ab- 
solution of his subjects from their alle- 
giance, and a formal deposition. These 
sentences were not very eifective upon 
men of vigorous minds, or upon those 
whose passions were engaged in their 
cause ; but they influenced both those 
who feared the threatenings of the cler- 
gy, and those who wavered already as 
to their line of political conduct. In the 
fluctuating state of Lombardy, the ex- 
communication of Frederick undermined 
his interests even in cities, like Parma, 
that had been friendly, and seemed to 
identify the cause of his enemies with 
that of religion ; a prejudice, artfully fo- 
mented by means of calumnies propaga- 
ted against himself, and which the con- 
duct of such leading Ghibehns as Ecce- 
lin, who lived in an open defiance of God 
and man, did not contribute to lessen. 
In 1240, Gregory proceeded to pubhsh a 
crusade against Frederick, as if he had 
been an open enemy to religion ; which 
he revenged by putting to death all the 
prisoners he made who wore the cross. 
There was one thing wanting (9 make 
the expulsion of the emperor from the 
Christian commonwealth more complete. 
Gregory IX. accordingly projected, and 
Innocent IV. carried into effect, the con- 
vocation of a general council, conndiof 
This was held at Lyons [A. D. Lyons. 
1245], an imperial city, but over which 
Frederick could no longer retain his su- 
premacy. In this assembly, where one 
hundred and forty prelates appeared, the 
question whether Frederick ought to be 
deposed was solemnly discussed ; he sub- 
mitted to defend himself by his advo- 
cates ; and the pope, in the presence, 
though without formally collecting the 
sufi'rages of the council, pronounced a 
sentence, by which Frederick's excom- 
munication was renewed, the empire 
?nd ail his kingdoms taken away, and 



Part I.J 



ITALY. 



143 



his subjects absolved from their fidelity. 
This is the most pompous act of usurpa- 
tion in all the records of the church of 
Rome ; and the tacit approbation of a 
general council seemed to incorporate 
the pretended right of deposing kings, 
which might have passed as a mad vaunt 
of Gregory VII. and his successors, with 
the established faith of Christendom. 

Upon the death of Frederick II., in 
r„n A IV 1250, he left to his son Conrad 

Conrad IV. ' , ■ . ■ r- 

a contest to mamtam lor every 
part of his inheritance, as well as for the 
imperial crown. But the vigour of the 
house of Swabia was gone ; Conrad was 
reduced to fight for the kingdom of Na- 
ples, the only succession which he 
could hope to secure against the troops 
of Innocent IV., who still pursued his 
family with implacable hatred, and claim- 
ed that kingdom as forfeited to its feudal 
superior, the Holy See. After Conrad's 
premature death, which happened in 1254, 
the throne was filled by his legitimate 
brother Manfred, who retained it by his 
bravery and address, in despite of the 
popes, till they were compelled to call 
in the assistance of a more powerful 
arm. 

The death of Conrad brings to a ter- 
mination that period in Italian history 
which we have described as nearly co- 
extensive with the greatness of the house 
of Swabia. It is perhaps upon the whole 
the most honourable to Italy ; that in 
which she displayed the most of national 
energy and patriotism. A Florentine or 
Venetian may dwell with pleasure upon 
later times ; but a Lombard will cast back 
his eye across the desert of centuries, till 
it reposes on the field of Legnano. Great 
changes followed in the foreign and in- 
ternal policy, in the moral and military 
character of Italy. But before we de- 
scend to the next period, it will be neces- 
sary to remark some material circum- 
stances in that which has just passed 
under our review. 

The successful resistance of the Lom- 
Causesofthe ^^^^ cities to such princes as 
success of both the Fredericks, must as- 
Lombardy. tonish a reader who brings to 
the story of these middle ages notions 
derived from modern times. But when 
we consider not only the ineffectual con- 
trol which could be exerted over a feu- 
dal army, bound only to a short term of 
service, and reluctantly kept in the field 
at its own cost, but the peculiar distrust 
and disaffection with which many Ger- 
man princes regarded the house of Swa- 
bia, less reason will appear for surprise. 
Nor did the kingdom of Naples, almost 



always in agitation, yield any material 
aid to the second Frederick. The main 
cause, however, of that triumph which 
attended Lombardy was the intrinsic en- 
ergy of a free government. From the 
eleventh century, when the cities be- 
came virtually republican, they put out 
those vigorous shoots which are the 
growth of freedom alone. Their domes- 
tic feuds, their mutual wars, the fierce as- 
saults of their national enemies, checked 
not their strength, their wealth, or their 
population ; but rather, as the limbs are 
nerved by labour and hardship, the re- 
pubhcs of Italy grew in vigour and cour- 
age through the conflicts they sustained. 
If we but remember what savage license 
prevailed during the ages that preceded 
their rise, the rapine of public robbers, 
or of feudal nobles little differing from 
robbers, the contempt of industrious arts, 
the inadequacy of penal laws, and the im- 
possibility of carrying them into efi'ect, 
we shall form some notion of the change 
which was wrought in the condition of 
Italy by the growth of its cities. In 
comparison with the blessings of indus- 
try protected, injustice controlled, emu- 
lation awakened, the disorders which 
ruffled their surface appear slight and 
momentary. I speak only of this first 
stage of their independence, and chiefly 
of the twelfth century, before those civil 
dissensions had reached their height, by 
which the glory and prosperity of Lom- 
bardy were soon to be subverted. 

We have few authentic testimonies as 
to the domestic improvement of the free 
Italian cities, while they still deserved the 
name. But we may perceive by history, 
that their power and population, accord- 
ing to their extent of territory, were al- 
most incredible. In Galvaneus Flamma, 
a Milanese writer, we find a curious sta- 
tistical account of that city in 1288, which, 
though of a date about thirty years after 
its liberties had been overthrown by 
usurpation, must be considered as imply- 
ing a high degree of previous advance- 
ment, even if we make allowance, as 
probably we should, for some exaggera- 
tion. The inhabitants are reckoned at 
200,000 ; the private houses 13,000 ; the 
nobility alone dwelt in sixty streets ; 
8000 gentlemen, or heavy cavalry (mili- 
tes) might be mustered from the city and 
its district, and 240,000 men capable of 
arms ; a force sufficient, the writer ob- 
serves, to crush all the Saracens. There 
were in Milan six hundred notaries, two 
hundred physicians, eighty schoolmas- 
ters, and fifty transcribers of manuscripts. 
In the district were one hundred and fifty 



144 



EUROPE DURING THE MIDDLE AGES. 



[Chap. HI. 



castles, with adjoining villages. Such was 
the state of Milan, Flamma concludes, in 
1288 ; it is not for me to say whether it 
has gained or lost ground since that time.* 
At this period, the territory of Milan was 
not perhaps more extensive than the 
county of Surrey; it was bounded at a 
little distance, on almost every side, by 
Lodi, or Pavia, or Bergamo, or Como. 
It is possible, however, that Flamma may 
have meant to include some of these as 
dependances of Milan, though not strictly 
united with it. How flourishing must the 
state of cultivation have been in such a 
country, which not only drew no sup- 
plies from any foreign land, but exported 
part of her own produce ! It was in the 
best age of their liberties, immediately 
after the battle of Legnano, that the ]Mi- 
lanese commenced the great canal which 
conducts the waters of the Tesino to 
their capital, a work very extraordinary 
for that time. During the same period 
the cities gave proofs of internal pros- 
perity that in many instances have de- 
scended to our own observation, in the 
solidity and magnificence of their archi- 
tecture. Ecclesiastical structures were 
perhaps more splendid in France and 
England ; but neither country could pre- 
tend to match the palaces and public 
buildings, the streets flagged with stone, 
the bridges of the same material, or the 
commodious private houses of Italy. f 

The courage of these cities was 
•wrought sometimes to a tone of insolent 
defiance, through the security inspired 
by their means of defence. From the 
time of the Romans to that when the 
use of gunpowder came to prevail, little 
change was made, or perhaps could be 
made, in that part of military science 
which relates to the attack and defence 
of fortified places. We find precisely 

* Muratori, Script. Rerum Italic, t. xi. This 
expression of Flamma may seem to intimate that 
Milan had declined in his time, which was about 
1340. Yet, as she had been continually advancing 
in power, and had not yet experienced any tyran- 
nical government, I cannot imagine this to have 
been the case ; and the same Flamma, who is a 
great flatterer of the Visconti, and has dedicated a 
particular work to the praises of Azzo, asserts 
therein that he had greatly improved the beauty 
and convenience of the city ; though Brescia, Cre- 
mona, and other places had decUned. Azarius, 
too, a writer of the same age, makes a similar rep- 
resentation. — Script. Rer. Ital., t. xvi., p. 314 and 
317. Of Luchino Visconti he says: Statum Me- 
diolani reintegravit in tantum, quod non civitas, 
sed provincia videbatur. 

t Sismondi, t. iv., p. 176. Tiraboschi, t. iv., p. 
426. See also the observations of Denina on the 
population and agriculture of Italy, 1. xiv., c. 9, 
10, chiefly indeed applicable to a period rather later 
than that of her free republics. 



the same engines of offence ; the cum- 
brous towers, from which arrows were 
shot at the besieged, the machines from 
which stones were discharged, the bat- 
tering-rams which assailed the walls, and 
the basket-work covering (the vinea or 
testudo of the ancients, and the gattus or 
chatchateil of the middle ages) under 
which those who pushed the battering 
engines were protected from the enemy. 
On the other hand, a city was fortified 
with a strong wall of brick or marble, 
with towers raised upon it at intervals, 
and a deep moat in front. Sometimes 
the ante-mural or barbacan was added; 
a rampart of less height, which impeded 
the approach of the hostile engines. The 
gates were guarded with a portcullis ; an 
invention which, as well as the barbacan, 
was borrowed from the Saracens.* With 
such advantages for defence, a numerous 
and intrepid body of burghers might not 
unreasonably stand at bay against a pow- 
erful army ; and as the consequences of 
capture were most terrible, while resist- 
ance was seldom hopeless, we cannot 
wonder at the desperate bravery of so 
many besieged towns. Indeed, it seldom 
happened that one of considerable size 
was taken, except by famine or treach- 
ery. Tortona did not submit to Freder- 
ick Barbarossa till the besiegers had 
corrupted with sulphur the only fountain 
that supplied the citizens ; nor Crema, till 
her walls were overtopped by the batter- 
ing engines. Ancona held out a noble 
example of sustaining the pressure of 
extreme famine. Brescia tried all the 
resources of a skilful engineer against 
the second Frederick ; and swerved not 
from her steadiness, when that prince, 
imitating an atrocious precedent of his 
grandfather at the siege of Crema, ex- 
posed his prisoners upon his battering 
engines to the stones that were hurled by 
their fellow-citizens upon the walls. f 

Of the government which existed in 
the republics of Italy during the y^^^^j. j^jg^. 
twelfth and thirteenth centuries, nai govern- 
no definite sketch can be traced. '"*"'• 
The chroniclers of those times are few 
and jejune ; and, as is usual with contem- 
poraries, rather intimate than describe 
the civil polity of their respective coun- 
tries. It would indeed be a weary task, 
if it were even possible, to delineate the 
constitutions of thirty or forty little states 
which were in perpetual fluctuation. The 

* Muratori, Antiquit. Ital., Dissert. 26. 

t See these sieges in the second and third vol- 
umes of Sismondi. That of Ancona, t. ii., p. 145- 
206, is told with remarkable elegance, and several 
interesting circumstances. 



PlRT 1 I 



.TALY. 



145 



magisliates elected in almost all of them, 
when <.hey first began to shake off the 
jurisdiction of their count or bishop, were 
styled consuls ; a word very expressive 
to an Itahan ear, since, in the darkest 
ages, tradition must have preservfed some 
acquaintance with the republican govern- 
ment of Rome.* The consuls were al- 
ways annual; and their office compre- 
hended the command of the national mili- 
tia in war, as well as the administration 
of justice, and preservation of public or- 
der ; but their number was various ; two, 
four, six, or even twelve. In their legis- 
lative and deliberative councils, the Lom- 
bards still copied the Roman constitution, 
or perhaps fell naturally into the form 
most calculated to unite sound discretion 
with the exercise of popular sovereignty. 
A council of trust and secrecy (della cre- 
denza) was composed of a small number 
of persons, who took the management 
of pubhc affairs, and may be called the 
ministers of the state. But the decision 
upon matters of general importance, trea- 
ties of alliance or declai*ations of war, 
the choice of consuls or ambassadors, 
belonged to the general council. This 
appears not to have been uniformly con- 
stituted in every city ; and, according to 
its composition, the government was 
more or less democratical. An ultimate 
sovereignt}'^, however, was reserved to 
the mass of the people ; and a parliament 
or general assembly was held to deliber- 
ate on any change in the form of consti- 
tution.! 

About the end of the twelfth century, 
a new and singular species of magistracy 
was introduced into the Lombard cities. 
During the tyranny of Frederick L he 
had appointed officers of his own, called 
podestas, instead of the elective consuls. 
It is remarkable that this memorial of 
despotic power should not have excited 
insuperable alarm and disgust in the free 
republics. But, on the contrary, they al- 
most universally, after the peace of Con- 
stance, revived an office which had been 
abrogated when they first rose in rebell- 
ion against Frederick. From experi- 
ence, as we must presume, of the partial- 
ity which their domestic factions carried 
into the administration of justice, it be- 
came a general practice to elect, by the 
name of podesta, a citizen of some neigh- 



* Ljindulf the younger, whose history of Milan 
extends from 1094 to 1133, calls himself publico- 
rum officiorum particeps et consulum epislolarum 
dictator.— Scrint. Rer. Ital., t. v., p. 486. This is, 
I behave, the eifrliest mention of those magistrates. 
— Muratori, Annali d'ltalia, A. D. 1107. 

t Muratori, Dissert. 46 and 52. Sismondi, t. i., 
p. 385. 

K 



bouring state, as their general, their crim- 
inal judge, and preserver of the peace. 
The last duty was frequently arduous, 
and required a vigorous as well as an up- 
right magistrate. Ofl^ences against the 
laws and security of the commonwealth 
were during the middle ages as often, 
perhaps more often, committed by the 
rich and powerful, than by the inferior 
class of society. Rude and licentious 
manners, family feuds and private re- 
venge, or the mere insolence of strength, 
rendered the execution of criminal jus- 
tice, practically and in every day's expe- 
rience, what it is now in theory, a neces- 
sary protection to the poor against op- 
pression. The sentence of a magistrate 
against a powerful offender was not pro- 
nounced without danger of tumult ; it was 
seldom executed without force. A con- 
victed criminal was not, as at present, the 
stricken deer of society, whose disgrace 
his kindred shrink from participating, and 
whose memory they strive to forget. Im- 
puting his sentence to iniquity, or glory- 
ing in an act which the laws of his fel- 
low-citizens, but not their sentiments, 
condemned, he stood upon his defence 
amid a circle of friends. The law was to 
be enforced not against an individual, but 
a family ; not against a family, but a fac- 
tion ; not perhaps against a local faction, 
but the whole Guelf or Ghibelin name, 
which might become interested in the 
quarrel. The podesta was to arm the 
republic against the refractory citizen; 
his house was to be besieged and razed 
to the ground, his defenders to be quelled 
by violence : and thus the people, become 
familiar with outrage and homicide under 
the command of their magistrates, were 
more disposed to repeat such scenes at 
the instigation of their passions.* 

The podesta was sometimes chosen in 
a general assembly, sometimes by a 
select number of citizens. His office 
was annual, though prolonged in peculiar 
emergencies. He was invariably a man 
of noble family, even in those cities which 
excluded their own nobility from any 
share in the government. He received 
a fixed salary, and was compelled to re- 
main in the city, after the expiration of 
his office, for the purpose of answering 
such charges as might be adduced against 
his conduct. He could neither marry a 
native of the city, nor have any relation 
resident within the district, nor even, so 
great was their jealousy, eat or drink in 



* Sismondi, t. iii., p. 258, from whom the sub- 
stance of these observations is borrowed. They 
may be copiously illustrated by ViU^ni's historv 
of Florence, and Stella's annals of Genoa. 



146 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



the house of any citizen. The authority 
of these foreign magistrates was not by 
any means aUive in all cities. In some 
he seems to have superseded the consuls, 
and commanded the armies in war. In 
others, as Milan and Florence, his authori- 
ty was merely judicial. We find, in some 
of the old annals, the years headed by the 
names of the podestas, as by those of the 
consuls in the history of Rome.* 

The effects of the evil spirit of discord. 
And dissen- that had SO fatally breathed 
sions. upon the republics of Lombar- 

dy, were by no means confined to nation- 
al interests, or to the grand distinction of 
Guelf and Ghibelin. Dissensions glowed 
in the heart of every city, and as the dan- 
ger of foreign war became distant, these 
grew more fierce and unappeasable. The 
feudal system had been established upon 
the principle of territorial aristocracy ; it 
maintained the authority, it encouraged 
the pride of rank. Hence, when the ru- 
ral nobility were compelled to take up 
their residence in cities, they preserved 
the ascendency of birth and riches. From 
the natural respect which is shown to 
these advantages, all offices of trust and 
command were shared among them; it 
is not material whether this were by pos- 
itive right or continual usage. A limited 
aristocracy of this description, where the 
inferior citizens possess the right of se- 
lecting their magistrates by free suffrage 
from a numerous body of nobles, is not 
among the worst forms of government, 
and affords no contemptible security 
against oppression and anarchy. This re- 
gimen appears to have prevailed in most 
of the Lombard cities during the eleventh 
and tvirelfth centuries ; though, in so great 
a deficiency of authentic materials, it 
would be too peremptory to assert this 
as an unequivocal truth. There is one 
very early instance, in the year 1041, of 
a civil war at Milan between the capita- 
nei, or vassals of the empire, and the 
plebeian burgesses, which was appeased 
by the mediation of Henry III. This is 
ascribed to the ill treatment which the 
latter experienced ; as was usual indeed 
in all parts of Europe, but which was en- 
dured with inevitable submission every- 
where else. In this civil war, which 
lasted three years, the nobility were obli- 
ged to leave Milan, and carry on the con- 
; test in the adjacent plains ;t and one of 
their class, by name Lanzon, whether 
moved by ambition or by virtuous indig- 

* Muratori, Dissert. 46. 

+ Landulfus, Hist. Mediolan. in Script. Rerum 
■ Ital,, t. iv., p. 86. Muratori, Dissert. 52. Annali 
; d'ltalia, A. D. 1011. St. Marc, t. iii., p. 94. 



nation against tyranny, put himself at the 
head of the people. 

From this time w-e scarcely find any 
mention of dissensions among the two 
orders, till after the peace of Constance; 
a proof, however defective the contem- 
porary annals may be, that such disturb- 
ances had neither been frequent nor seri- 
ous. A schism between the nobles and 
people is noticed to have occurred at Fa- 
enza in 1185. A serious civil war of 
some duration broke out between them 
at Brescia in 1200. From this time mu- 
tual jealousies interrupted the domestic 
tranquillity of other cities, but it is about 
1220 that they appear to have taken a de- 
cided aspect of civil war; within a few- 
years of that epoch, the question of aris- 
tocratical or popular command was tried 
by arms in Milan, Piacenza, Modena, Cre- 
mona, and Bologna.* 

It would be vain to enter upon the mer- 
its of these feuds, which the meager his- 
torians of the time are seldom much dis- 
posed to elucidate, and which they saw 
with their own prejudices. A writer of 
the present age would show little philos- 
ophy, if he were to heat his passions by 
the reflection, as it were, of those forgot- 
ten animosities, and aggravate, like a par- 
tial contemporaiy, the failings of one or 
another faction. We have no need of 
positive testimony to acquaint us with 
the general tenour of their history. We 
know that a nobility is always insolent, 
that a populace is always intemperate ; 
and may safely presume that the former 
began as the latter ended, by injustice 
and abuse of power. At one time the 
aristocracy, not content with seeing the 
annual magistrates selected from their 
body, would endeavour by usui-pation to 
exclude the bulk of the citizens from suf- 
frage. At another, the merchants, grown 
proud by riches, and confident of their 
strength, would aim at obtaining the hon- 
ours of the state, which had been reserv- 
ed to the nobility. This is the inevitable 
consequence of commercial wealth, and 
indeed of freedom and social order, Avhich 
are the parents of wealth. There is in 
the progress of civilization a term at 
which exclusive privileges must be relax- 
ed, or the possessors must perish along 
with them. In one or two cities a tem- 
porary compromise was made through 
the intervention of the pope, whereby of- 
fices of public trust, from the highest to 
the lowest, were divided, in equal propor- 
tions or otherwise, between the nobles 
and the people. This also is no bad ex- 



"^ Sismondi, t. ii., p. 444. Muratori, Annali d'lta- 
lia, A. D. 1185, (Stc. 



Part I.] 



ITALY. 



147 



pedient, and proved singularly efficacious 
in appeasing the dissensions of Rome. 

There is, however, a natural prepon- 
derance in the popular scale, which, in a 
fair trial, invariably gains on that of the 
less numerous class. The artisans, who 
composed the bulk of the population, were 
arranged in companies according to their 
occupations. Sometimes, as at Milan, 
they formed separate associations, with 
rules for their internal government.* 
The clubs, called at Milan la Motta and 
la Credenza, obtained a degree of weiglit 
not at all surprising to those who consid- 
er the spirit of mutual attachment which 
belongs to such fraternities ; and we shall 
see a more striking instance of this here- 
after in the republic of Florence. To so 
formidable and organized a democracy, 
the nobles opposed their numerous fam- 
ihes, the generous spirit that belongs to 
high birth, the influence of wealth and 
established name. The members of each 
distinguished family appear to have lived 
in the same street ; their houses were 
fortified with square massive towers of 
commanding height, and wore the sem- 
blance of castles within the walls of a 
city. Brancaleon, the famous senator of 
Home, destroyed one hundred and forty 
of these domestic intrenchments, which 
were constantly serving the purpose of 
eivil broils and outrage. Expelled, as fre- 
quently happened, from the city, it was 
in the power of the nobles to avail them- 
selves of their superiority in the use of 
cavalry, and to lay waste the district, till 
weariness of an unprofitable contention 
reduced the citizens to terms of com- 
promise. But, when all these resources 
were ineffectual, they were tempted or 
forced to sacrifice the public liberty to 
their own welfare, and lent their aid to a 
foreign master or a domestic usurper. 

In all these scenes of turbulence, wheth- 
er the contest was between the nobles 
and people, or the Guelf and Ghibelin 
factions, no mercy was shown by the 
conquerors. The vanquished lost their 
homes and fortunes, and, retiring to other 
cities of their ovt^n party, waited for the 
opportunity of revenge. In a popular 
tumult the houses of the beaten side were 
frequently levelled to the ground; not 
perhaps from a sort of senseless fury 
which Muratori inveighs against, but on 
account of the injury which these forti- 
fied houses inflicted upon the lower citi- 
zens. The most deadly hatred is that 
which men, exasperated by proscription 
and forfeiture, bear to their country ; nor 

* Muratori, Dissert. 52. Sismondi, t. iii., p. 262. 
K2 



have we need to ask any other cause for 
the calamities of Italy, than the bitterness 
with which an unsuccessful faction was 
thus pursued into banishment. When 
the Ghibelins were returning to Flor- 
ence, after a defeat given to the prevail- 
ing party in 12G0, it was proposed among 
them to demolish the city itself which 
had cast them out ; and, but for the per- 
suasion of one man, Farinata degl' Uberti, 
their revenge would have thus extinguish- 
ed all patriotism.* It is to this that we 
must ascribe their proneness to call in 
assistance from every side, and to invite 
any servitude for the sake of retaliating 
upon their adversaries. The simple love 
of public liberty is in general, I fear, too 
abstract a passion to glow warmly in the 
human breast ; and, though often invigo- 
rated as well as determined by personal 
animosities and predilections, is as fre- 
quently extinguished by the same cause. 
Independently of the two leading diff"er- 
ences which embattled the citizens of an 
Italian state, their form of government 
and their relation to the empire, there 
were others more contemptible, though 
not less mischievous. In every city the 
quarrels of private families became the 
foundation of general schism, sedition, 
and proscription. Sometimes these blend- 
ed themselves Avith the grand distinctions 
of Guelf and Ghibelin ; sometimes they 
were more nakedly conspicuous. This 
may be illustrated by one or two promi- 
nent examples. Imilda de Lambertazzi, 
a noble young lady at Bologna, was sur- 
prised by her brothers in a secret inter- 
view Avith Boniface Gieremei, whose fam- 
ily had long been separated by the most 
inveterate enmity from her own. She 
had just time to escape : Avhile the Lam- 
bertazzi despatched her lover with their 
poisoned daggers. On her return she 
found his body still warm, and a faint 
hope suggested the remedy of sucking the 
venom from his wounds. But it only 
communicated itself to her own veins ; 
and they Avere found by her attendants 
stretched lifeless by each other's side. 
So cruel an outrage Avrought the Giere- 
mei to madness ; they formed alliances 
with some neighbouring republics ; the 
Lambertazzi took the same measures ; 
and after a fight in the streets of Bologna 
of forty days' duration, the latter w^ere 
driven out of the city, with all the Ghibe- 



* G. Villani, 1. vi., c. 82. Sismondi. I cannot 
forgive Dante for placing this-.patriot tra I'anime 
piu nere, in one of the worst regions of his Inferno. 
The conversation of the poet with Farinata, cant. 
10, is very fine, and illustrative of Florentine his 
tory. 



148 



EUROPE DURING THE MIDDLE AGES. 



[Chap. HL 



lins, their political associates. Twelve 
thousand citizens were condemned to 
banishment ; their houses razed, and their 
estates confiscated.* Florence was at 
rest till, in 1215, the assassination of an 
individual produced a mortal feud between 
the families Boundelmonti and Uberti, in 
which all the city took a part. An out- 
rage committed at Pistoja, in 1300, spht 
the inhabitants into the parties of Bian- 
chi and Neri ; and these, spreading to 
Florence, created one of the most virulent 
divisions which annoyed that republic. 
In one of the changes which attended 
this little ramification of faction, Florence 
expelled a young citizen who had borne 
offices of magistracy, and espoused the 
cause of the Bianchi. Dante Alighieri 
retired to the courts of some Ghibelin 
princes, where his sublime and inventive 
mind, in the gloom of exile, completed 
that original combination of vast and ex- 
travagant conceptions with keen political 
satire, which has given immortality to 
his name, and even lustre to the petty 
contests of his time.f 

In the earlier stages of the Lombard 
republics, their differences, as well mu- 
tual as domestic, had been frequently ap- 
peased by the mediation of the emperors : 
and the loss of this salutary iiilluence 
may be considered as no slight evil at- 
tached to that absolute emancipation 
which Italy attained in the thirteenth 
century. The popes sometimes endeav- 
oured to interpose an authority, which, 
though not quite so direct, was held in 
greater veneration ; and, if their own 
tempers had been always pure from the 
selfish and vindictive passions of those 
whom they influenced, might have pro- 
duced more general and permanent good. 
But they considered the Ghibelins as 
their own peculiar enemies, and the tri- 
umph of the opposite faction as the 
church's best security. Gregory X. and 
Nicholas III., whether from benevolent 
motives, or because their jealousy of 
Charles of Anjou, while at the head of 
the Guelfs, suggested the revival of a 
Ghibelin party as a counterpoise to his 
power, distinguished their pontificate by 
enforcing measures of reconciliation in 
all Italian cities ; but their successors re- 
turned to the ancient policy and prejudi- 
ces of Rome. 

The singular history of an individual 



* Sismondi, t. ill., p. 442. This story may sug- 
gest that of Romeo and Juliet, itself founded upon 
an Italian novel, and not an unnatural picture of 
manners. 

t Dino Compagni, in Scr. Rer. Ital., t. ix. Vil- 
lani, 1st. Fiorent., 1. viii. Dante, passim 



far less elevated in station than Giovanni dl 
popes or emperors, Fra Giovan- Vicenza. 
ni di Vicenza, belongs to these times and 
to this subject. This Dominican friar 
began his career at Bologna, in 1233, 
preaching the cessation of war and for- 
giveness of injuries. He repaired from 
thence to Padua, to Verona, and the 
neighbouring cities. At his command 
men laid down their instruments of war, 
and embraced their enemies. With that 
susceptibility of transient impulse nat- 
ural to popular governments, several re- 
publics implored him to reform their laws 
and to settle their differences. A gen- 
eral meeting was summoned in the plain 
of Paquara, upon the banks of the Adige. 
The Lombards poured themselves forth 
from Romagna and the cities of ihe 
March ; Guelfs and Ghibelins, nobles 
and burghers, free citizens and tenantry 
of feudal lords, marshalled around their 
carroccios, caught from the lips of the 
preacher the illusive promise of universal 
peace. They submitted to agreements 
dictated by Fra Giovanni, which contain 
little else than a mutual amnesty ; wheth- 
er it were that their quarrels had been 
really without object, or that he had dex- 
terously avoided to determine the real 
point of contention. But power and rep- 
utation suddenly acquired are transitory. 
Not satisfied with being the legislator 
and arbiter of Italian cities, he aimed at 
becoming their master; and abused the 
enthusiasm of Vicenza and Verona, to 
obtain a grant of absolute sovereignty. 
Changed from an apostle to an usurper, 
the fate of Fra Giovanni might be pre- 
dicted ; and he speedily gave place to 
those who, though they made a worse 
use of their power, had, in the eyes of 
mankind, more natural pretensions to 
possess it.* 



PART II. 

State of Italy after the Extinction of the House of 
Swabia. — Conquest of Naples by Charles of 
Anjou. — The Lombard Republics become sever- 
ally subject to Mnces or Usurpers.— The Vis- 
conti of'^Milan — their Aggrandizement. — Decline 
of the Imperial Authority over Italy. — Internal 
State of Rome.— Rienzi.— Florence— her forms 
of Government historically traced to the end of 
the fourteenth Century.— Concfuest of Pisa.- ■ 
Pisa— its Commerce, Naval Wars with Genoa, 
and Decay. — Genoa — her Contentions with Ven- 

* Tiraboschi, Storia della Letteratura, t. iv., p. 
214 (a verv well-written account). Sismondi, t, 
ii., p. 484. 



Part II.] 



ITALY. 



149 



ice. — War of Chioggia. — Government of Genoa. 
— Venice— her Origin and Prosperity. — Vene- 
tian Government — its Vices. — Territorial Con- 
quests of Venice. — Military System of Italy. — 
Companies of Adventure. — 1. foreign ; Guarni- 
eri, Hawkwood — and 2 native ; Braccio, Sforza. 
Improvements in Military Service. — Arms, offen- 
sive and defensive. — Invention of Gunpowder. — 
Naples. — First Line of Aiijou. — Joanna 1. — La- 
dislaus. — Joanna II. — Francis Sforza becomes 
Duke of Milan.— Alfonso, king of Naples. — 
State of Italy during the fifteenth Century.— 
Florence. — Rise of the Medici, and Ruin of their 
Adversaries. — Pretensions of Charles VIII. to 
Naples. 

From the death of Frederick II., in 1250, 
to the invasion of Charles VIII., in 1494, 
a long and undistingnished period occurs, 
which it is impossible to break into any 
natural divisions. It is an age in many 
respects highly brilliant ; the age of poe- 
try and letters, of art, and of continual 
improvement. Italy displayed an intel- 
lectual superiority in this period over the 
Transalpine nations, which certainly had 
not appeared since the destruction of the 
Roman empire. But her political history 
presents a labyrinth of petty facts, so ob- 
scure and of so little influence as not to 
arrest the attention ; so intricate and in- 
capable of classification as to leave only 
confusion in the memory. The general 
events that are worthy of notice, and 
give a character to this long period, are 
the establishment of small tyrannies upon 
the ruins of republican government in 
most of the cities, the gradual rise of 
three considerable states, Milan, Flor- 
ence, and Venice, the naval and commer- 
cial rivalry between the last city and 
Genoa, the final acquisition by the popes 
of their present territorial sovereignty, 
and the revolutions in the kingdom of 
Naples under the lines of Anjou and Ar- 
agon. 

After the death of Frederick II., the 
distinctions of Guelf and Ghibelin became 
destitute of all rational meaning. The 
most odious crimes were constantly per- 
petrated, and the utmost miseries endur- 
ed, for an echo and a shade, that mocked 
the deluded enthusiasts of faction. None 
of the Guelfs denied the nominal, but in- 
definite sovereignty of the empire ; and 
beyond a name the Ghibelins themselves 
would have been little disposed to carry 
it. But the virulent hatreds attached to 
these words grew continually more im- 
placable, till ages of ignominy and tyran- 
nical government had extinguished every 
energetic passion in the bosoms of a de- 
graded people. 

In the fall of the house of Swabia, 
Rome appeared to have consummated her 
triumph ; and although the Ghibelin party 



was for a little time able to maintain 
itself, and even to gain ground in the 
north of Italy, yet two events that oc- 
curred not long afterward restored the 
ascendency of their adversaries. The 
first of these was the fall of Eccelin da 
Romano [A. D. 1259], whose rapid suc- 
cesses in Lombardy appeared to threaten 
the establishment of a tremendous des- 
potism, and induced a temporary union 
of Guelf and Ghibelin states, by which 
he was overthrown. The next, and 
far more important, was the change of 
dynasty in Naples. This king- Affairs of 
dom had been occupied, after the Naples, 
death of Conrad, by his illegitimate broth- 
er, Manfred, in the behalf, as he at first 
pretended, of young Conradin the heir, 
but in fact as his own acquisition. [A. 
D. 1254.] He was a pr-jice of an active 
and firm mind, well fitted for his difficult 
post, to whom the Ghibelins looked up 
as their head, and as the representative 
of his father. It was a natural object 
with the popes, independently of their ill- 
will towards a son of Frederick II., to 
see a sovereign on whom they could 
better rely placed upon so neighbouring 
a throne. Charles, count of An- Charles of 
jou. brother of St. Louis, was Anjou. 
tempted by them to lead a crusade (for 
as sucli all wars for the interest of 
Rome were now considered) against the 
Neapolitan usurper. [A. D. 1266.] The 
chance of a battle decided the fate of 
Naples, and had a striking influence upon 
the history of Europe for several centu- 
ries. Manfred was killed in the field ; 
but there remained the legitimate heir 
of the Fredericks, a boy of seventeen 
years old, Conradin, son of Conrad, who 
rashly, as we say at least after the event, 
attempted to regain his inheritance. He 
fell into the hands of Charles ; and the 
voice of those rude ages, as well as of a 
more enlightened posterity, has united 
in branding with everlasting infamy the 
name of that prince, who did not hesitate 
to purchase the security of his own title 
by the public execution of an honourable 
competitor, or rather a rightful claimant 
of the throne he had usurped. [A. D. 1268.] 
With Conradin the house of Swabia was 
extinguished; but Constance, the daugh- 
ter of Manfred, had transported Aw right to 
Sicily and Naples into the house of Ara- 
gon, by her marriage with Peter III. 

This success of a monarch, selected 
by the Roman pontiffs as their Decline of 
particular champion, turned the the Ghibelin 
tide of faction over all Italy, p^''^- 
He expelled the Ghibelins from Florence, 
of which they had a few years before 



150 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



obtained a complete command by means 
of their memorable victory upon the river 
Arbia. After the fall of Conradin, that 
party was everywhere discouraged. Ger- 
many held out small hopes of support, 
even when the imperial throne, which 
had long been vacant, should be filled by 
one of her princes. The populace were, 
in almost every city, attached to the 
church and to the name of Guelf; the 
kings of Naples employed their arms, and 
the popes their excommunications, so 
that for the remainder of the thirteenth 
century the name of Ghibelin was a term 
of proscription in the majority of Lom- 
bard and Tuscan republics. Charles was 
constituted by the pope vicar-general in 
Tuscany. This was a new pretension 
of the Roman pontiffs, to name the lieu- 
tenants of the empire during its vacancy, 
which indeed could not be completely 
filled up without their consent. It soon, 
however, became evident, that he aimed 
at the sovereignty of Italy. Some of the 
popes themselves, Gregory X. and Nich- 
olas IV., grew jealous of their own crea- 
ture. At the Congress of Cremona, in 
1269, it was proposed to confer upon 
Charles the seigniory of all the Guelf 
cities ; but the greater pan were prudent 
enough to choose him rather as a friend 
than a master.* 

The cities of Lombardy, however, of 
The Lorn- either denomination, were no 
bard cities longer influenced by that gen- 
become sub- erous disdain of one man's will, 
ject to or s. ^j^j^j^ jg ^q republican govern- 
ments what chastity is to women ; a 
conservative principle, never to be rea- 
soned upon, or subjected to calculations 
of utility. By force, or stratagem, or 
free consent, almost all the Lombard re- 
publics had already fallen under the yoke 
of some leading citizen, who became the 
lord (signore), or, in the Grecian sense, 
tyrant of his country. The first instance 
of a voluntary delegation of sovereignty 
was that above mentioned of Ferrara, 
which placed itself under the Lord of 
Este. Eccelin made himself truly the 
tyrant of the cities beyond the Adige ; 



* Sismondi, t. iii., p. 417. Several, however, 
including Milan, took an oath of fidelity to Charles 
the same year. — Ibid. In 1273, he was lord of Ales- 
sandria and Piacenza, and received tribute from Mi- 
lan, Bologna, and most Lombard cities. — Muraton. 
It was evidently his intention to avail himself of 
the vacancy of the empire, and either to acquire 
that title himself, or at least to stand in the same 
relation as the emperors had done to the Italian 
states ; which, according to the usage of the twelfth 
and thirteenth centuries, left them in possession 
of every thing that we call independence, with the 
reservation of a nominal allegiance. 



and such experience ought naturally to 
have inspired the Italians with more 
universal abhorrence of despotism. But 
every danger appeared trivial in the eyes 
of exasperated factions, when compared 
with the ascendency of their adversaries. 
Weary of unceasing and useless contests, 
in which ruin fell with an alternate but 
equal hand upon either party, liberty 
withdrew from a people who disgraced 
her name ; and the tumultuous, the brave, 
the intractable Lombards, became eager 
to submit themselves to a master, and 
patient under the heaviest oppression. 
Or, if tyranny sometimes overstepped 
the limits of forbearance, and a sedi- 
tious rising expelled the reigning prince, 
it was only to produce a change of hands, 
and transfer the impotent people to a dif- 
ferent, and perhaps a worse, despotism.* 
In many cities, not a conspiracy was 
planned, not a sigh was breathed in fa- 
vour of republican government, after once 
they had passed under the sway of a sin- 
gle person. The progress indeed was 
gradual, though sure, from limited to 
absolute, from temporary to hereditary 
power, from a just and conciliating rule, 
to extortion and cruelty. But, before the 
middle of the fourteenth century, at the 
latest, all those cities which had spurned 
at the faintest mark of submission to the 
emperors, lost even the recollection of 
self-government, and were bequeathed, 
like an undoubted patrimony, among the 
children of their new lords. Such is 
the progress of usurpation ; and such 
the vengeance that Heaven reserves for 
those who waste in license and faction 
its first of social blessings, liberty. f 

* See an instance of the manner in which one 
tyrant was exchanged for another, in the fate of 
Passerino Bonaccorsi, lord of Mantua, in 1328. 
Luigi di Gonzaga surprised him, rode the city 
(corse la citta) with a troop of horse, crying Viva 
il popolo, e muoja Messer Passerino e le sue ga- 
belle ! killed Passerino upon the spot, put his son 
to death in cold blood, e poi si fece signore della 
terra. Villani, 1. x., c. 99, observes, like a good 
republican, that God had fulfilled in this the words 
of his Gospel (query, what Gospel?), I will slay 
my enemy by my enemy ! abbattendo I'uno tiranno 
per I'altro. 

t See the observations of Sismondi, t. iv., p. 212, 
on the conduct of the Lombard signori (I know not 
of any English word that characterizes them, ex 
cept tyrant in its primitive sense), during the first 
period of their dominion. They were generally 
chosen in an assembly of the people, sometimes for 
a short term, proicmged in the same manner. The 
people was consulted upon several occasions. At 
Milan there was a council of 900 nobles, not per- 
manent or representative, but selected and con- 
vened at the discretion of the government, through- 
out the reigns of the V'isconti. — Corio, p. 519, 5H3. 
Thus, as Sismondi remarks, they respected the 
sovereignty of the people, while they destroyed its 
liberty. 



Part II.] 



ITALY. 



151 



The city most distinguished in both 
TheTorriani wars against the house of Swa- 
atid visconii bia, for an unconquerable at- 
at Milan. tachment to repubhcan institu- 
tions, was the first to sacrifice them in a 
few years after the death of Frederick II. 
Milan had for a considerable time been 
agitated by civil dissensions between the 
nobility and inferior citizens. These par- 
ties were pretty equally balanced, and 
their success was consequently alternate. 
Each had its own podesta, as a party- 
leader, distinct from the legitimate ma- 
gistrate of the city. At the head of the 
nobility was their archbishop, Fra Leon 
Perego ; the people chose Alartin della 
Torre, one of a noble family which had 
ambitiously sided with the democratic 
faction. In consequence of the crime of 
a nobleman, who had murdered one of 
his creditors, the two parties took up 
arms in 1257. A civil war of various 
success, and interrupted by several pa- 
cifications, which, in that unhappy temper, 
could not be durable, was terminated in 
about two years by the entire discomfit- 
ure of the aristocracy, and by the elec- 
tion of Martin della Torre as chief and 
lord (capitano e signore) of the people. 
Though the Milanese did not probably in- 
tend to renounce the sovereignty resident 
in their general assemblies, yet they soon 
lost the republican spirit ; five in succes- 
sion of the family Delia Torre might be 
said to reign in Milan ; each indeed by a 
formal election, but with an implied re- 
cognition of a sort of hereditary title. 
Twenty years afterward, the Visconti, a 
family of opposite interests, supplanted 
the Torriani at Milan ; and the rivality 
between these great houses was not at 
an end till the final establishment of 
Matteo Visconti, in 1313 ; but the people 
were not otherwise considered than as 
aiding by force the one or other party, 
and at most deciding between the preten- 
sions of their masters. 

The vigour and concert infused into 
the Guelf party by the successes of 
Charles of Anjou, were not very durable. 
That prince was soon involved in a pro- 
tracted and unfortunate quarrel with the 
kings of Aragon, to whose protection his 
revolted subjects in Italy had recurred. 
On the other hand, several men of ener- 
Revivai of getic character retrieved the Ghi- 
theciiibe- beliu interests in Lombardy, and 
Un party, gyeu in the Tuscan cities. The 
Visconti were acknowledged heads of 
that faction. A family early established 
as lords of Verona, the Delia Scala, main- 
tained the credit of the same denomina- 
tion between the Adige and the Adriatic. 



Castruccio Castrucani, an adventurer of 
remarkable ability, rendered himself 
prince of Lucca, and drew over a formi- 
dable accession to the imperial side from 
the heart of the church-party in Tuscany, 
though his death restored the ancient or- 
der of things. The inferior tyrants were 
partly Guelf, partly Ghibelin, according 
to local revolutions ; but, upon the whole, 
the latter acquired a gradual ascendency. 
Those indeed who cared for the independ- 
ence of Italy, or for their own power, 
had far less to fear from the phantom of 
imperial prerogatives, long intermitted, 
and incapable of being enforced, than 
from the new race of foreign princes, 
whom the church had substituted for the 
house of Swabia. The Angevin jjing^ of 
kings of Naples were sovereigns Naples aim 
of Provence, and from thence ^[^"g'J'j'"''"'* 
easily encroached upon Pied- 
mont, and threatened the Milanese. Rob- 
ert, the third of this line, almost openly 
aspired, like his grandfather, Charles I., 
to a real sovereignty over Italy. His of- 
fers of assistance to Guelf cities in war 
were always coupled with a demand of 
the sovereignty. Many yielded to his 
ambition ; and even Florence twice be- 
stowed upon him a temporary dictator- 
ship. In 1314 he was acknowledged 
lord of Lucca, Florence, Pavia, Alessan- 
dria, Bergamo, and the cities of Romagna. 
In 1318 the Guelfs of Genoa found no 
other resource against the Ghibelin emi- 
grants who \vere under their walls, than 
to resign their liberties to the King of 
Naples for the term of ten years, which 
he procured to be renewed for six more. 
The Avignon popes, especially John 
XXII., out of blind hatred to the Empe- 
ror Louis of Bavaria and the Visconti 
family, abetted all these measures of 
ambition. But they were rendered abor- 
tive by Robert's death, and the subse- 
quent disturbances of his kingdom. 

At the latter end of the thirteenth cen- 
tury, there were almost as many princes 
in the north of Italy as there had been 
free cities in the preceding age. Their 
equality, and the frequent domestic revo- 
lutions which made their seat unsteady, 
kept them for a while from encroaching 
on each other. Gradually, however, they 
became less numerous ; a quantity of ob- 
scure tyrants were swept away from the 
smaller cities ; and the people, careless 
or hopeless of liberty, were glad to ex- 
change the rule of despicable petty usurp- 
ers for that of more distinguished and 
powerful families. About the f^^«°f 
year 1350, the central parts of in,hemid- 
Lombardy had fallen under the dieoftha 



152 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



fourteenth dominion of the Visconti. Four 
century. Q^j^gj. houses occupied the sec- 
ond rank ; that of Este at Ferrara and 
Modena ; of Scala at Verona, which un- 
der Cane and Mastino della Scala had 
seemed hkely to contest with the lords 
of Milan the supremacy over Lombardy ; 
of Carrara at Padua, which later than 
any Lombard city had resigned her lib- 
erty ; and of Gonzaga at Mantua, which, 
without ever obtaining any material ex- 
tension of territory, continued, probably 
for that reason, to reign undisturbed till 
the eighteenth century. But these uni- 
ted were hardly a match, as they some- 
Power of the times experienced, for the Vis- 
Visconti. conti. That family, the object 
of every league formed in Italy for more 
than fifty years, in constant hostility to 
the church, and well inured to interdicts 
and excommunications, producing no 
one man of military talents, but fertile 
of tyrants detested for their perfidious- 
ness and craelty, was nevertheless ena- 
bled, with almost uninterrupted success, 
to add city after city to the dominion of 
Milan, till it absorbed all the north of 
Italy. Under Gian Galeazzo, whose reign 
began in 1385, the viper (their armorial 
bearing) assumed indeed a menacing at- 
titude :* he overturned the great family 
of Scala, and annexed their extensive 
possessions to his own ; no power inter- 
vened from Vercelli in Piedmont to Fel- 
tre and Beiluno ; while the free cities of 
Tuscany, Pisa, Siena, Perugia, and even 
Bologna, as if by a kind of witchcraft, 
voluntarily called in a dissembling tyrant 
as their master. 

Powerful as the Visconti were in Italy, 
they were long in washing out the tinge 
of recent usurpation, which humbled 
them before the legitimate dynasties of 
Europe. At the siege of Genoa, in 1318, 
Robert, king of Naples, rejected with con- 
tempt the challenge of Marco Visconti to 
decide their quarrel in single combat. f 
But the pride of sovereigns, like that of 
private men, is easily set aside for their 
interest. Galeazzo Visconti purchased 
with 100,000 florins a daughter of France 
for his son, which the French historians 
mention as a deplorable humiliation for 
their crown. A few years afterward, 



* Allusions to heraldry are very common in the 
Italian writers. All the historians of the fourteenth 
century habitually use the viper, ii biscione, as a 
synonyms for the power of Milan. 

t Delia qual cosa il R^ molto sdegno ne prese. 
Villani, 1. ix., c. 93. It was reckoned a misalliance, 
as Dante tells us, in the widow of Nino di Gallu- 
ra, a nobleman of Pisa, though a sort of prince in 
Sardinia, to marry one of the Visconti. — Purgato- 
rio, cant. 8. 



Lionel, duke of Clarence, second son of 
Edward III., certainly not an inferior 
match, espoused Galeazzo's daughter. 
Both these connexions were short-lived ; 
but the union of Valentine, daughter of 
Gian Galeazzo, with the Duke of Orleans, 
in 1389, produced far more important con- 
sequences, and serv^ed to transmit a claim 
to her descendants, Louis XII. and Fran- 
cis I., from which the long calamities of 
Italy at the beginning of the sixteenth 
century were chiefly derived. Not long 
after this marriage [A. D. 1395], the Vis- 
conti were tacitly admitted among the 
reigning princes, by the erection of Milan 
into a dutchy under letters patent of the 
Emperor Wenceslaus.* 

The imperial authority over Italy was 
almost entirely suspended after Relations ot 
the death of Frederick II. A the empire 
long interregnum followed in ^"'' '"''y* 
Germany ; and when the vacancy was 
supplied by Rodolph of Hapsburg [A. D. 
127-2], he was too prudent to dissipate 
his moderate resources, where the great 
house of Swabia had failed. About forty 
years afterward [A. D. 1309], the emperor 
Henry of Luxemburg, a prince, like Ro- 
dolph, of small hereditary pos- jj^^ 
sessions, but active and discreet, ^ 
availed himself of the aiicient respect 
borne to the imperial name, and the mutual 
jealousies of the Italians, to recover for a 
very short time a remarkable influence. 
But, though professing neutrality, and de- 
sire of union between the Guelfs and 
Ghibelins, he could not succeed in re- 
moving the distrust of the former ; his 
exigences impelled him to large demands 
of money ; and the Italians, when they 
counted his scanty German cavalry, per- 
ceived that obedience was altogether a 
matter of their own choice. Henry died, 
however, in time to save himself from 
any decisive reverse. His successors, 
Louis of Bavaria and Charles IV., de- 
scended from the Alps with similar mo- 
tives, but after some temporary good for- 
tune were obliged to return, not without 
discredit. Yet the Italians never broke 
that almost invisible thread which con- 
nected them with Germany ; the fal- 
lacious name of Roman emperor still 
challenged their allegiance, though con- 
ferred by seven Teutonic electors with- 
out their concurrence. Even Florence, 
the most independent and high spir- 
ited of republics, was induced to make 
a treaty with Charles IV. in 1355, 
which, while it confirmed all her actual 



* Corio, p. 538. 



Part II.] 



ITALY. 



153 



liberties, not a little, by that very confirm- 
ation, affected her sovereignty.* This 
deference to the supposed prerogatives 
of the empire, even while they were 
least formidable, was partly owing to 
jealousy of French or Neapolitan inter- 
ference, partly to the national hatred of 
the popes who had seceded to Avignon, 
and in some degree to a misplaced re- 
spect for antiquity, to which the revival 
of letters had given birth. The great ci- 
vihans, and the much greater poets of 
the fourteenth century, taught Italy to 
consider her emperor as a dormant sov- 
ereign, to whom her various principali- 
ties and repubhcs were subordinate, and 
during whose absence alone they had le- 
gitimate authority. 

In one part, however, of that country, 
Cession ofRo- ^he empire had, soon after the 
magna 10 the commencement of this peri- 
Popes. 0^^ spontaneously renounced 

its sovereignty. From the era of Pe- 
pin's donation, confirmed and extended 
by many subsequent charters, the Holy 
See had tolerably just pretensions to the 
province entitled Romagna, or the exar- 
chate of Ravenna. But the popes, whose 
menaces were dreaded at the extremities 
of Europe, were still very weak as tem- 
poral princes. Even Innocent III. had 
never been able to obtain possession of 
this part of St. Peter's patrimony. The 
circumstances of Rodolph's accession in- 
spired Nicholas III. with more confidence. 
That emperor granted a confirmation of 
every thing included in the donations of 

* The republic of Florence was at this time in 
considerable peril from a coalition of the Tuscan 
cities against her, which rendered the protection 
of the emperor convenient. But it was very re- 
luctantly that she acquiesced in even a nominal 
submission to his authority. The Florentine en- 
voys, in their first address, would only use the 
words, Santa Corona, or Serenissimo Principe ; 
eanza ricordarlo irnperadore, o dimostrargli alcuna 
reverenza di suggezzione, domandando che il com- 
mune di Firenze volea, essendogli ubbidiente, le co- 
tali e le cotali Iranchigie per inantenere il suo popolo 
neir usata libertade. — Mat. Villani, p. 274. (Script. 
Ker. Ital., t. xiv.) This style made Charles angry ; 
and the city soon atoned for it by accepting his 
privilege. In this, it must be owned, he assumes 
a decided tone of sovereignty. The gonfalonier 
and priors are declared to be his vicars. The dep- 
uties of the city did homage and swore obedience. 
Circumstances induced the principal citizens to 
make this submission, which they knew to be 
merely nominal. But the high-spirited people, not 
so indifferent about names, came into il very un- 
willingly. The treaty was seven times proposed, 
and as often rejected in the consiglio del popolo, 
before their feelings were subdued. Its publica- 
tion was received with no marks of joy. The pub- 
lic buildings alone were illuminated : but a sad si- 
lence indicated the wounded pride of every private 
citizen.— M. Villani, p. 286, 290. Sismondi, t. vi., 
p 238. 



Louis I., Otho, and his other predeces- 
sors ; but was still reluctant or ashamed 
to renounce his imperial rights. Accord- 
ingly, his charter is expressed to be 
granted without diminution of the empire 
(sine demembratione imperii) ; and his 
chancellor received an oath of fidelity 
from the cities of Romagna. But the 
pope insisting firmly on his own clainni, 
Rodolph discreetly avoided involving him- 
self in a fatal quarrel, and, in 1278, abso- 
lutely released the imperial supremacy 
over all the dominions already granted 
to the Holy See.* 

This is a leading epoch in the tempo- 
ral monarchy of Rome. But she stood 
only in the place of the emperor ; and 
her ultimate sovereignty was compatible 
with the practical independence of the 
free cities, or of the usurpers who had 
risen up among them. Bologna, Faenza, 
Rimini, and Ravenna, \vith many others 
less considerable, took an oath indeed to 
the pope, but contiimed to regulate both 
their internal concerns and foreign rela- 
tions at their own discretion. The first 
of these cities was far pre-eminent abovo 
the rest for population and renown, and, 
though not without several intermissions, 
preserved a republican character till the 
end of the fourteenth century. The rest 
were soon enslaved by petty tyrants, 
more obscure than those of Lombardy. 
It was not easy for the pontiffs of Avig- 
non to reinstate themselves in a domin- 
ion which they seemed to have abandon- 
ed ; but they made several attempts to re- 
cover it, sometimes with spiritual arms, 
sometimes with the more efficacious aid 
of mercenary troops. The annals of 
this part of Italy are peculiarly uninter- 
esting. 

Rome itself was, throughout the middle 
ages, very little disposed to ac- internal 
quiesce in the government of her swte of 
bishop. His rights were indefinite, ^'^'"®' 
and unconfirmed by positive law ; the 
emperor was long sovereign, the people 
always meant to be free. Besides the 
common causes of insubordination and 
anarchy among the Italians, which appli- 
ed equally to the capital city, other senti- 
ments more peculiar to Rome preserved 
a continual, though not uniform, influence 
for many centuries. There still remain- 
ed enough, in the wreck of that vast in- 
heritance, to swell the bosoms of her cit- 
izens with a consciousness of their own 
dignity. They bore the venerable name, 
they contemplated the monuments of art 
and empire, and forgot, in the illusions of 

* Muratori, ad ann. 1274, 1275, 1278. Sismon- 
di, t, ill., p. 461. 



154 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



national pride, that the tutelar gods of the 
buildings were departed for ever. About 
the middle of the twelfth century, these 
recollections were heightened by the elo- 
quence of Arnold of Brescia, a political 
heretic, who preached against the tem- 
poral jurisdiction of the hierarchy. In a 
temporary intoxication of fancy, they 
were led to make a ridiculous show of 
self-importance towards Frederick Barba- 
rossa, when he came to receive the impe- 
rial crown ; but the German sternly chi- 
ded their ostentation, and chastised their 
resistance.* With the popes they could 
deal more securely. Several of them 
were expelled from Rome during that age 
by the seditious citizens. Lucius II. died 
of hurts received in a tumult. The gov- 
ernment was vested in fifty-six senators, 
annually chosen by the people, through 
the intervention of an electoral body, ten 
delegates fromVcclch of the thirteen dis- 
tricts of the city.f This constitution 
lasted not quite fifty years. In 1192, 
Rome imitated the prevailing fashion by 
the appointment of an annual foreign ma- 
gistrate. J Except in name, the senator 
of Rome appears to have perfectly re- 
sembled the podesta of other cities. This 
magistrate superseded the representative 
senate, who had proved by no means ade- 
quate to control the most lawless aris- 
tocracy of Italy. I shall not repeat the 
story of Brancaleou's rigorous and inflex- 
ible justice, which a great historian has 
already drawn from obscurity. It illus- 
trates not the annals of Rome alone, but 
the general state of Italian society, the na- 
ture of a podesta's duty, and the difficul- 
ties of its execution. The office of sena- 
tor survives after more than six hundred 
years ; a foreign magistrate still resides 
in the capitol ; but he no longer wields 
the " iron flail"'^) of Brancaleon, and his 
nomination proceeds of course from the 
supreme pontiff, not from the people. In 
the twelfth and thirteenth centuries, the 
senate, and the senator who succeeded 
them, exercised one distinguishing attri- 



* The impertinent address of a Roman orator to 
Frederick, and his answer, are preserved in Otho 
of Frismgen, 1. ii., c. 22, but so much at length 
that we may suspect some exaggeration. Otho is 
rather rhetorical. They may be read in Gibbon, 
c. 69. 

t Sismondi, t. ii., p. 36. Besides Sismondi and 
Muratori, I would refer for the history of Rome 
during the middle ages to the last chapters of Gib- 
bon's Decline and Fall. 

t Sismondi, t. ii., p. 308. 

6 The readers of Spenser will recollect the iron 
flail of Talus, the attendant of Arthegal, emblemat- 
ic of the severe justice of the lord deputy of Ire- 
land, Sir Arthur Grey, «hadowed under that alle- 
gory. 



bute of sovereignty, that of coining gold 
and silver money. Some of their coins 
still exist, with legends in a very repub- 
lican tone.* Doubtless the temporal au- 
thority of the popes varied according to 
their personal character. Innocent III. 
had much more than his predecessors for 
almost a century, or than some of his suc- 
cessors. He made the senator take an 
oath of fealty to him, which, though not 
very comprehensive, must have passed in 
those times as a recognition of his supe 
riority.f 

Though there was much less obedience 
to any legitimate power at Rome than 
anywhere else in Italy, even during the 
thirteenth century, yet after the seces- 
sion of the popes to Avignon, their own 
city was left in a far worse condition 
than before. Disorders of every kind, 
tumidt and robbery, prevailed in the 
streets. The Roman nobility were en- 
gaged in perpetual war with each other. 
Not content with their own fortified pal- 
aces, they turned the sacred monuments 
of antiquity into strongholds, and con- 
summated the destruction of time and 
conquest. At no period has the city en- 
dured such irreparable injuries ; nor was 
the downfall of the western empire so 
fatal to its capital, as the contemptible 
feuds of the Orsini and Colonna fami- 
lies. Whatever there was of govern- 
ment, whether administered by a legate 
from Avignon, or by the municipal au- 
thorities, had lost all hold on these pow- 
erful barons. [A. D. 1347.] In the midst 
of this degradation and wretchedness, an 
obscure man, Nicola di Rienzi, The Tribune 
conceived the project of resto- Rifnzi. 
ring Rome not only to good order, but 
even to her ancient greatness. He had 
received an education beyond his birth, 
and nourished his mind with the study of 
the best writers. After many harangues 
to the people, which the nobility, blinded 
by their self-confidence, did not attempt 
to repress, Rienzi suddenly excited an in- 
surrection, and obtained complete suc- 
cess. He was placed at the head of a 
new government, with the title of tribune, 
and with almost unlimited power. The 
first effects of this revolution were won- 
derful. All the nobles submitted, though 
with great reluctance ; the roads were 
cleared of robbers ; tranquillity was re- 
stored at home ; some severe examples 
of justice intimidated offenders; and the 
tribune was regarded by all the people as 
the destined restorer of Rome and Italy. 

* Gibbon, vol. xii., p. 289. Muratori, Antiquit. 
Ital., Dissert. 27. 
t Sismondi, p. 309. 



Part IL] 



ITALY. 



155 



■J'hough the court of Avignon could not 
approve of such a usurpation, it tempo- 
rized enough not directly to oppose it. 
Most of the Italian republics, and some 
of the princes, sent ambassadors, and 
seemed to recognise pretensions which 
were tolerably ostentatious. The King 
of Hungary and Queen of Naples sub- 
mitted their quarrel to the arbitration of 
Rienzi, who did not, however, undertake 
to decide upon it. But this sudden exal- 
tation intoxicated his understanding, and 
exhibited failings entirely incompatible 
with his elevated condition. If Rienzi 
had lived in our own age, his talents, 
which were really great, would have 
found their proper orbit. For his char- 
acter was one not unusual among litera- 
ry politicians ; a combination of knowl- 
edge, eloquence, and enthusiasm for ideal 
excellence, with vanity, inexperience of 
mankind, unsteadiness, and physical ti- 
midity. As these latter qualities be- 
came conspicuous, they eclipsed his vir- 
tues, and caused his benefits to be forgot- 
ten ; he was compelled to abdicate his 
government, and retire into exile. After 
several years, some of which he passed 
in the prisons of Avignon, Rienzi was 
brought back to Rome, with the title of 
senator, and under the command of tlie 
legate. It was supposed that the Ro- 
mans, who had returned to their habits of 
insubordination, would gladly submit to 
their favourite tribune. And this proved 
the case for a few months ; but after that 
time they ceased altogether to respect a 
man, who so little respected himself in 
accepting a station where he could no 
longer be free, and Rienzi was killed in a 
sedition.* 

Once more, not long after the death of 
Subsequent Rienzi, the freedom of Rome 
•iTairs of secms to have revived in repub- 
Romt". lican institutions, though with 
names less calculated to inspire peculiar 
recollections. Magistrates called ban- 
nerets, chosen from the thirteen districts 
of the city, with a militia of three thousand 

* Sismondi, t. v., c. 37; t. vi., p. 201. Gibbou, 
c. 70. De Sade, Vie de Petrarque, t. ii., passim. 
Tiraboschi, t. vi., p. 339. It is difficult to resist 
the admiration which all the romantic circum- 
stances of Ilienzi's history tend to excite, and to 
which Petrarch so blindly gave way. That great 
man's characteristic excellence was not good com- 
mon sense. He had mihibed two notions, of which 
it is haid to say which was the more absurd ; 
that Rome had a legitimate right to all her an- 
cient authority over the rest of the world ; and 
that she was likely to recover this authority in con- 
sequence of the revolution produced by Rienzi. 
Giovanni Villani, living at Florence, and a stanch 
republican, formed a very different estimate, which 
weighs more than the enthusiastic panegyrics of 



citizens at their command, were placed 
at the head of this commonwealth. The 
great object of this new organization was 
to intimidate the Roman nobility, whose 
outrages, in the total absence of govern- 
ment, had grown intolerable. tSeveral 
of them were hanged the first year by 
order of the bannerets. The citizens, 
however, had no serious intention of 
throwing oflT their subjection to the 
popes. They provided for their own se- 
curity, on account of the lamentable se- 
cession and neglect of those who claimed 
allegiance while they denied protection. 
But they were ready to acknowledge 
and welcome back their bishop as their 
sovereign. Even without this, they sur- 
rendered their republican constitution in 
1362, it does not appear for what reason, 
and permitted the legate of Innocent VI. 
to assume the government.* We find, 
however, the institution of bannerets re- 
vived, and in full authority, some years 
afterward. But the internal history of 
Rome appears to be obscure, and I have 
not had opportunities of examining it 
minutely. Some degree of political free- 
dom the city probably enjoyed during 
the schism of the church ; but it is not 
easy to discriminate the assertion of le- 
gitimate privileges from the licentious 
tumults of the barons or populace. la 
1435, the Romans formally took av/ay 
the government from Eugenius IV., and 
elected seven signiors or chief magis- 
trates, like the priors of Florence. f But 
this revolution was not of long continu- 
ance. On the death of Eugenius, the cit- 
izens deliberated upon proposing a con- 
stitutional charter to the future pope. 
Stephen Porcaro, a man of good family, 
and inflamed by a strong spirit of liberty, 
was one of their principal instigators. 
But the people did not sufficiently par- 
take of that spirit. No measures were 
taken upon this occasion ; and Porcaro, 
whose ardent imagination disguised the 
hopelessness of his enterprise, tampering 
in a fresh conspiracy, was put to death 
under the pontificate of Nicholas V.| 
The province of Tuscany contiimed 

Petrarch. La detta impresa del tribuno era un' 
opera fantastica, e di poco durare, 1. xii., c. 90. An 
illustrious female writer has drawn with a single 
stroke the character of Rienzi, Crescentius, and 
Arnold of Brescia, the fond restorers of Roman lib- 
erty, qtd ont pris le.i souvenirs pour les esptrances. — 
Corinne, t. i., p. 159. Could Tacitus have excell- 
ed this? 

* Matt. Villani, p. 576, 604, 709. Sismondi, t. 
v., p. 92. He seems to have overlooked the former 
period of government by bannerets, and refers their 
institution to 1375. 

+ Script. Rerum Italic, t. iii., pars 2, p. 1128 
t Id., p. 1131, 1134. Sismondi, t. x., p. 18. 



156 



EUROPE DURING THE MIDDLi^' AGES. 



[Chap. Ill, 



longer than Lombardy under the govern- 
ment of an imperial heutenant. It was 
not till about the middle of the twelfth 
century that the cities of Florence, 
Cities of Lucca, Pisa, Sienna, Arezzo, Pis- 
Tuscany. toia, and several less considera- 
Fiorence. ^^e, which might perhaps have al- 
ready their own elected magistrates, be- 
came independent republics. Their his- 
tory is, with the exception of Pisa, very 
scanty till the death of Frederick II. 
The earliest fact of any importance re- 
corded of Florence occurs in 1184, when 
it is said that Frederick Barbarossa took 
from her the dominion over the district 
or county, and restored it to the rural 
nobility, on account of her attachment 
to the church.* This I chiefly mention 
to illustrate the system pursued by the 
cities, of bringing the territorial proprie- 
tors in their neighbourhood under subjec- 
tion. During the reign of Frederick II. 
Florence became, as far as she was able, 
an ally of the popes. There was indeed 
a strong Ghibelin party, comprehending 
many of the greatest families, which oc- 
casionally predominated through the as- 
sistance of the emperor. It seems, how- 
ever, to have existed chiefly among the 
nobility ; the spirit of the people was 
thoroughly Guelf. After several revolu- 
tions, accompanied by alternate proscrip- 
tion and demolition of houses, the Guelf 
party, through the assistance of Charles 
of Anjou, obtained a final ascendency in 
1266 ; and after one or two unavailing 
schemes of accommodation, it was estab- 
lished as a fundamental law in the Flor- 
entine constitution, that no person of 
Ghibelin ancestry could be admitted to 
offices of public trust ; which, in such a 
government, was in eff'ect an exclusion 
from the privileges of citizenship. 

The changes of internal government 
Govern- ^nd vicissitudes of success among 
ment of factions were so frequent at Flor- 
Fiorence. gj^^g^ f^j. n^any years after this 
time, that she is compared by her great 
banished poet to a sick man, who, unable 
to rest, gives himself momentary ease, 
by continual change of posture in his 
bed.f They did not become much less 
numerous after the age of Dante. Yet 
the revolutions of Florence should per- 
haps be considered as no more than a 
necessary price of her liberty. It was 
her boast and her happiness to have es- 

* Villani, 1. v., c. 12. 

t E se ben ti ricordi, e Medi il lume, 
Vedrai te somigliante a quella inferma, 
Che not! puo trovar posa in su le piume, 
Ma con dar volta suo dolore scherina. 

Purgatorio, cant. vi. 



caped, except for one short period, that 
odious rule of vile usurpers, under which 
so many other free cities had been 
crushed. A sketch of the constitution 
of so famous a republic ought not to be 
omitted in this place. Nothing else in 
the history of Italy after Frederick II. is 
so worthy of our attention.* 

The basis of the Florentine polity was 
a division of the citizens exercising com- 
merce, into their several companies or 
arts. These were at first twelve, seven 
called the greater arts, and five lesser ; 
but the latter were gradually increased to 
fourteen. The seven greater arts were 
those of lawyers and notaries, of dealers 
in foreign cloth, called sometimes Cal- 
imala, of bankers or money-changers, of 
woollen-drapers, of physicians and drug- 
gists, of dealers in silk, and of furriers. 
The inferior arts were those of retailers 
of cloth, butchers, smiths, shoemakers, 
and builders. This division, so far at 
least as regarded the greater arts, was 
as old as the beginning of the thirteenth 
century.f But it was fully established, 
and rendered essential to the constitu- 
tion, in 1266. By the provisions made in 
that year, each of the seven greater arts 
had a council of its own, a chief magis- 
trate or consul, who administered justice 
in civil causes to all members of his com- 
pany, and a banneret (gonfaloniere) or 
military officer, to whose standard they 
repaired when any attempt was made to 
disturb the peace of the city. 

The administration of criminal justice 
belonged at Florence, as at other cities, 
to a foreign podesta, or rather to two 
foreign magistrates, the podesta and the 
capitano del popolo, whose jurisdiction, 
so far as I can trace it, appears to have 
been concurrent. J In the first part of 
the thirteenth century, the authority of 
the podesta may have been more exten- 
sive than afterward. These offices were 
preserved till the innovations of the Med- 
ici. The domestic magistracies under- 
went more changes. Instead of consuls, 
which had been the first denomination of 
the chief magistrates of Florence, a col- 



* I have found considerable difficulties in this 
part of my task ; no author with whom I atn ac- 
quainted giving a tolerable view of the Florentine 
government, except M. Sismondi, who is himself 
not always satisfactory. 

t Ammirato ad ann. 1204 et 1235. Villani inti- 
mates, 1. vii., c. 13, that the arts existed ascommer- 
cial companies before 1266. Machiavelli and Sis- 
mondi express themselves rather inaccurately, as 
if they had been erected at that time, which indeed 
is the era of their political importance. 

t Matteo Villani, p. 194. G. Villani places the 
institution of the podesta in 1207 ; we find it how- 
ever as early as 1184. — Ammirato. 



Part II.] 



ITALY. 



1S7 



lege of twelve or fourteen persons, called 
Anziani or Buonuomini, but varying in 
name as well as number according to 
revolutions of party, was established 
about the middle of the thirteenth centu- 
ry, to direct public affairs.* This order 
was entirely changed in 1282, and gave 
place to a new form of supreme magis- 
tracy, which lasted till the extinction of 
the republic. Six priors, elected every 
two months, from each of the six quar- 
ters of the city, and from each of the 
greater arts, except that of lawyers, con- 
stituted an executive magistracy. They 
lived, during their continuance in office, 
in. a palace belonging to the city, and 
were maintained at the public cost. The 
actual priors, jointly with the chiefs and 
councils (usually called la capitudine) of 
the seven greater arts, and with certain 
adjuncts (arroti) named by themselves, 
elected by ballot their successors. Such 
•was the practice for about forty years 
after this government was established. 
But an innovation, begun in 1324, and 
perfected four years afterward, gave a 

?eculiar character to the constitution of 
'lorence. A lively and ambitious peo- 
ple, not merely jealous of their public 
sovereignty, but deeming its exercise a 
matter of personal enjoyment ; aware, at 
the same time, that the will of the whole 
body could neither be immediately ex- 
pressed on all occasions, nor even through 
chosen representatives, without the risk 
of violence and partiality, fell upon the 
singular idea of admitting all citizens, 
not unworthy by their station or conduct, 
to offices of magistracy by rotation. 
Lists were separately made out by the 
priors, the twelve buonuomini, the chiefs 
and councils of arts, the bannerets and 
other respectable persons, of all citizens, 
Guelfs by origin, turned of thirty years 
of age, and, in their judgment, worthy of 
public trust. The lists thus formed were 
then united, and those who had composed 
them meeting together, in number nine- 
ty-seven, proceeded to ballot upon every 
name. Whoever obtained sixty-eight 
Hack balls was placed upon the reformed 
list ; and all the names it contained, 
being put on separate tickets into a bag 
or purse (imborsati), were drawn succes- 
sively as the magistracies were renewed. 
As there were above fifty of these, none 
of which could be held for more than 
four months, several hundred citizens 
were called in rotation to bear their share 
in the government within two years. 
But, at the expiration of every two years, 



* G. Villani, 1. vi., c. 39, 



the scrutiny was renewed, and fresh 
names were mingled with those which 
still continued undrawn ; so that accident 
might deprive a man for life of his por- 
tion of sovereignty.* 

Four councils had been established by 
the constitution of 1266, for the decision 
of all propositions laid before them by 
the executive magistrates, whether of a 
legislative nature or relating to public 
policy. These were now abrogated ; and 
in their places were substituted one of 
300 members, all plebeians, called con- 
siglio di popolo, and one of 250, called con- 
siglio di commune, into which the nobles 
might enter. These were changed by the 
same rotation as the magistracies, every 
four months. t A parliament, or general 
assembly of the Florentine people, was 
rarely convoked ; but the leading princi- 
ple of a democratical republic, the ulti- 
mate sovereignty of the multitude, was 
not forgotten. This constitution of 1324 
was fixed by the citizens at large in a 
parliament ; and the same sanction was 
given to those temporary delegations of 
the signiory to a prince, which occasion- 
ally took place. What is technically 
called by their historians farsi popolo, 
was the assembly of a parliament, or a 
resolution of all derivative powers into 
the immediate operation of the popular 
will. 

The ancient government of this repub- 
lic appears to have been chiefly in the 
hands of its nobility. These were very 
numerous, and possessed large estates 
in the district. But by the constitution 
of 1266, which was nearly coincident 
with the triumph of the Guelf faction, 
the essential powers of magistracy, as 
well as of legislation, were thrown into 
the scale of thef commons. The colleges 
of arts, whose functions became so em- 
inent, were altogether commercial. Many 
indeed of the nobles enrolled themselves 
in these companies, and were among the 
most conspicuous merchants of Florence. 
These were not excluded from the exec- 
utive college of the priors, at its first in- 
stitution in 1282. It was necessary, how- 
ever, to belong to one or other of the 
great arts in order to reach that magis- 
tracy. The majority, therefore, of the 
ancient families, saw themselves pushed 



* Villani,!. is., c. 27; 1. x., c. 110; 1. xi., c. 105. 
Sismondi, t. v., p. 174. This species of lottery, 
recommending itself by an apparent fairness and 
incompatibility with undue influence, was speedily 
adopted in all the neighbouring republics, and has 
always continued, according to Sismondi, in Lucca, 
and in those cities of the ecclesiastical state which 
preserved the privilege of choosing their municipal 
officers, p. 95. f i'l- Ibid, 



158 



EUROPE DURING THE MIDDLE AGES. 



tCKAP. IIL 



aside from the helm, which was intrust- 
ed to a class whom they naturally held 
in contempt. 

It does not appear that the nobility 
made any overt opposition to these dem- 
ocratical institutions. Confident in a 
force beyond the law, they cared less for 
what the law might provide against them. 
They still retained the proud spirit of per- 
sonal independence which had belonged 
to their ancestors in the fastnesses of the 
Apennines. Though the laws of Flor- 
ence, and a change in Italian customs, 
had transplanted their residence to the 
city, it was in strong and lofty houses 
that they dwelt, among their kindred, and 
among the fellows of their rank. Not- 
withstanding the tenour of the constitu- 
tion, Florence was. for some years after 
the establishment of priors, incapable of 
resisting the violence of her nobility. 
Her historians all attest the outrages and 
assassinations committed by them on the 
inferior people. It was in vain tliat jus- 
tice was offered by the podesta and the 
capitano del popolo. Witnesses dared 
not to appear against a noble offender ; 
or if, on a complaint, the officer of jus- 
tice arrested the accused, his family 
made common cause to rescue their kins- 
man, and the populace rose in defence of 
the laws, till the city was a scene of tu- 
mult and bloodshed. I have already al- 
luded to this insubordination of the higher 
classes as general in the Italian repub- 
lics ; but the Florentine Ayriters, being 
fuller than the rest, are our best specific 
testimonies.* 

[A. D. 1295.] The dissensions between 
the patrician and plebeian orders ran 
very high, when Giano della Bella, a man 
of ancient lineage, but attached, without 
ambitious views, so far as appears, though 
not without passion, to the popular side, 
introduced a series of enactments ex- 
ceedingly disadvantageous to the ancient 
aristocracy. The first of these Avas the 
appointment of an executive officer, the 
gonfalonier of justice ; whose duty it was 
to enforce the sentences of the podesta 
and capitano del popolo, in cases where 
the ordinary officers were insufficient. A 
thousand citizens, afterward increased 
to four times that number, were bound 
to obey his commands. They were dis- 
tributed into companies, the gonfaloniers 
or captains of which became a sort of 
corporation or college, and a constituent 
part of government. [A. D. 1295.] This 
new militia seems to have superseded 
that of the companies of arts, which I 

* Villani, 1. vii., c. 113 ; 1. viii., c. 8. Ammirato, 
Storia Fiorentina, 1. iv., in cominciamento. 



have not observed to be mentioned at any 
later period. The gonfalonier of justice 
was part of the signiory along with the 
priors, of whom he was reckoned the 
president, and changed like them every 
two months. He was, in fact, the first 
magistrate of Florence.* If Giano della 
Bella had trusted to the efficacy of this 
new security for justice, his fame would 
have been beyond reproach. But he fol- 
lowed it up by harsher provisions. The 
nobility were now made absolutely inel- 
igible to the office of prior. For an of- 
fence committed by one of a noble fam- 
ily, his relations Avere declared responsi- 
ble in a penalty of 3000 pounds. And, to 
obviate the difficulty arising from the fre- 
quent intimidation of Avitnesses, it Avas 
provided that common fame, attested by 
two credible persons, should be sufficient 
for the condemnation of a nobleman. f 

These are the famous ordinances of 
justice, which passed at Florence for the 
great charter of her democracy. They 
have been reprobated in later times as 
scandalously unjust, and I have little in- 
clination to defend them. The last, es- 
pecially, Avas a violation of those eternal 
principles, Avhich forbid us, for any cal- 
culations of advantage, to risk the sacri- 
fice of innocent blood. But it is impos- 
sible not to perceive that the same un- 
just severity has sometimes, under a like 
pretext of necessity, been applied to the 
Aveaker classes of the people, Avhich they 
Avere in this instance able to exercise 
toAvards their natural superiors. 

The nobility were soon aware of the 
position in which they stood. For half 
a century their great object Avas to pro- 
cure the relaxation of the ordinances of 
justice. But they had no success with 
an elated enemy. In three years' time, 
indeed, Giano della Bella, the author of 
these institutions, Avas driven into exile ; 
a conspicuous, though by no means sin- 
gular, proof of Florentine ingratitude. J 

* It is to be regretted, that the accomplished 
biographer of Lorenzo de' Medici should have 
taken no pains to inform himself of the most ordi- 
nary particulars in the constitution of Florence. 
Among many other errors, he says, vol. ii., p. 51, 
5th edit., that the gonfalonier of justice was sub- 
ordinate to the delegated mechanics (a bad e.xprea- 
sion), or priori dell' arti, whose number too he aug- 
ments to ten. The proper style of the republic 
seems to run thus : I priori dell' arti e gonfaloniere 
di giustizia, il popolo e 'I comune della citta di Fi- 
renze. — G. Villani, 1. xii., c. 109. 

t Villani, 1. viii., c. 1. Ammirato, p. 188, edit. 
1647. A magistrate, called 1' esecutor della gius- 
tizia, was appointed with authority equal to that 
of the podesta, for the special purpose of watching 
over the observation of the ordinances of justice.— 
Ammirato, p. 666. 

X Villani, 1. viii., c. 8 



Part II.] 



ITALY. 



Idd 



The wealth and physical strength of the 
nobles were however untouched ; and 
their influence must always have been 
considerable ; in the great feuds of Bian- 
chi and Neri, the ancient famihes were 
most distinguished. No man plays a 
greater part in the annals of Florence at 
the beginning of the fourteenth century 
than Corso Donati, chief of the latter fac- 
tion, who might pass as representative 
of the turbulent, intrepid, ambitious citi- 
zen-noble of an Italian republic* But 
the laws gradually became more sure of 
obedience ; the sort of proscription which 
attended the ancient nobles lowered their 
spirit ; while a new aristocracy began to 
raise its head, the aristocracy of famihes 
who, after fdling the highest magistracies 
for two or three generations, obtained an 
hereditary importance, which answered 
the purpose of more unequivocal nobili- 
ty; just as in ancient Rome, plebeian 
families, by admission to curule offices, 
acquired the character and appellation of 
nobility, and were only distinguishable 
by their genealogy from the original pa- 
tricians. f Florence had her plebeian no- 
bles (popolani grandi), as well as Rome ; 
the Peruzzi, the Ricci, the Albizi, the 
Medici, correspond to the Catos, the 
Pompeys, the Brutuses, and the Anto- 
nies. But at Rome the two orders, after 
an equal partition of the highest offices, 
were content to respect their mutual 
privileges ; at Florence the commoners 
preserved a rigorous monopoly, and the 
distinction of high birth was, that it de- 
barred men from political franchises and 
civil justice. J 

This second aristocracy did not obtain 
much more of the popular affection than 
that which it superseded. Public out- 
rage and violation of law became less 
frequent ; but the new leaders of Flor- 
ence are accused of continual mis- 
government at home and abroad, and 
sometimes of peculation. There was of 
course a strong antipathy between the 
leading commoners and the ancient no- 
bles; both were disliked by the people. 
In order to keep the nobles under more 
control, the governing party more than 

* Dino Compagni. Villani. 

t La nobilta civile, se bene noti in baronaggi, e 
capace di grandissimi honori, percioche esercitando 
i supremi magistrati della sua patria, viene spesso 
a comandare a capitani d' eserciti e ella stessa per 
se 6 in mare, 6 in terra, molte volta i supremi ca- 
richi adopera. E tale h la Fiorentina nobilta. — 
Ammirato delle Faraiglie Florentine. Firenze, 
1G14, p. 25. 

t Quelle, che all' altre citta suolo recare splen- 
dore, in Firenze era dannoso, o veramente vano e 
inutile, says Aminirato of nobility.— Storia Fioren- 
una, p. IGL 



once introduced a new foreign magis- 
trate, with the title of captain of defence 
(della guardia), whom tliey invested with 
an almost unbounded criminal jurisdic- 
tion. [A. D. 1336-1340.] One Gabrielli, 
of Agobbio, was twice fetched for this 
purpose ; and in each case he behaved 
in so tyrannical a manner as to occa- 
sion a tumult.* His oilice, however, 
was of short duration, and the title at 
least did not import a sovereign com- 
mand. But very soon afterward Flor- 
ence had to experience one taste of a 
cup which her neighbours had drunk off 
to the dregs, and to animate her magnan- 
imous love of freedom by a knowledge 
of the calamities of tyranny. 

A war with Pisa, imsuccessfully, if 
not unskilfully, conducted, gave rise to 
such dissatisfaction in the city, that the 
leading commoners had recourse to an 
appointment something like that of Ga- 
brielli, and from similar motives. Wal- 
ter de Brienne, duke of Athens, was de- 
scended from one of the French crusaders 
who had dismembered the Grecian em- 
pire in the preceding century; but his 
father, defeated in battle, had lost the 
principality along with his life, and the 
titular duke was an adventurer in the 
court of France. He had been, however, 
slightly known at Florence on a former 
occasion. There was a uniform maxim 
among the Italian republics, that extraor- 
dinary powers should be conferred upon 
none but strangers. The Duke of Athens 
was accordingly pitched upon for the 
military command, which was united with 
domestic jurisdiction. This appears to 
have been promoted by the governing 
party, in order to curb the nobility ; but 
they were soon undeceived in their ex- 
pectations. The first act of the Duke of 
Athens was to bring four of the most 
eminent commoners to capital punish- 
ment for military offences. These sen- 
tences, whether just or otherwise, gave 
much pleasure to the nobles, who had 
so frequently been exposed to similar 
severity, and to the populace, who are 
naturally pleased with the humiliation of 
their superiors. Both of these were ca- 
ressed by the duke, and both conspired, 
with blind passion, to second his ambi- 
tious views. It was proposed and car- 
ried in a fidl parliament, or assembly of 
the people, to bestow upon him the 
signiory for life. [A. D. 1342.] The 
real friends of their country, as well as 
the oligarchy, shuddered at this measure. 
Throughout all the vicissitudes of party, 



* Villani, 1, xi., c. 39 and 117. 



160 



EUROPE DURING THE MIDDLE AGES. 



tClIAP. Ill 



Florence had never yet lost sight of re- 
publican institutions. Not that she had 
never accommodated herself to tempo- 
rary circumstances by naming a signior. 
Charles of Anjou had been invested with 
that dignity for the term of ten years ; 
Robert, king of Naples, for five ; and his 
son, the Duke of Calabria, was at his 
death signior of Florence. These prin- 
ces named the podesta, if not the priors ; 
and were certainly pretty absolute in 
their executive powers, though bound by 
oath not to alter the statutes of the city.* 
But their office had always been tempo- 
rary. Like the dictatorship of Rome, it 
was a confessed, unavoidable evil ; a sus- 
pension, but not extinguishment of rights. 
Like that, too, it was a dangerous prece- 
dent, througli which crafty ambition and 
popular rashness might ultimately sub- 
vert the republic. If Walter de Brienne 
had possessed the subtle prudence of a 
Matteo Visconti, or a Cane della Scala, 
there appears no reason to suppose that 
I'lorence would have escaped the fate of 
other cities ; and her history might have 
become as useless a record of perfidy 
and assassination as that of Mantua or 
Verona.f 

But, happily for Florence, the reign of 
tyranny was very short. The Duke of 
Athens had neither judgment nor activity 
for so difficult a station. He launched 
out at once into excesses, which it would 
be desirable that arbitrary power should 
always commit at the outset. The taxes 
were considerably increased ; their pro- 
duce was dissipated. The honour of the 
state was sacrificed by an inglorious 
treaty with Pisa; her territory was di- 
minished by some towns throwing oft' 
their dependance. Severe and multiplied 
punishments spread terror through the 
city. The noble families, who had on 
the duke's election destroyed the ordi- 
nances of justice, now found themselves 
exposed to the more partial caprice of a 
despot. He filled the magistracies with 
low creatures from the inferior artificers ; 
a class which he continued to flatter.| 
Ten months passed in this manner, when 
three separate conspiracies, embracing 
most of the nobility and of the great 
commoners, were planned for the recov- 
ery of freedom. The duke was protect- 
ed by a strong body of hired cavalry. 
Revolutions in an Italian city were gen- 
erally effected by surprise. The streets 
vpere so narrow and so easily secured by 
barricades, that if a people had time to 
stand on its defence, no cavalry was of 



* Villani, 1. ix., c. 55, 60, 135, 328. 

t Id., 1. xii., c. 1, 2, 3, t Id., c. 8. 



any avail. On the other hand, a body of 
lancers in plate-armour might dissipate 
any number of a disorderly populace. 
Accordingly, if a prince or usurper would 
get possession by surprise, he, as it was 
called, rode the city ; that is, galloped with 
his cavalry along the streets, so as to 
prevent the people from collecting to 
erect barricades. This expression is 
very usual with historians of the four- 
teenth century.* The conspirators at 
Florence were too quick for the Duke of 
Athens. The city was barricaded in 
every direction; and, after a contest of 
some duration, he consented to abdicate 
his signiory. 

Thus Florence recovered her liberty. 
Her constitutional laws now seemed to 
revive of themselves. But the nobility, 
who had taken a very active part in the 
recent liberation of their country, thought 
it hard to be still placed under the rigor- 
ous ordinances of justice. Many of the 
richer commoners acquiesced in an equi- 
table partition of magistracies, which was 
established through the influence of the 
bishop. But the populace of Florence, 
with its characteristic forgetfulness of 
benefits, was tenacious of those proscript- 
ive ordinances. The nobles too, elated 
by their success, began again to strike 
and injure the inferior citizens. A new 
civil war in the city streets decided their 
quarrel ; after a desperate resistance, 
many of the principal houses were pil- 
laged and burnt ; and the perpetual ex- 
clusion of the nobility was confirmed by 
fresh laws. But the people, now sure 
of their triumph, relaxed a little upon this 
occasion the ordinances of justice ; and, 
to make some distinction in favour of 
merit or innocence, effaced certain fam- 
ilies from the list of nobility. Five hun- 
dred and thirty persons were thus ele- 
vated, as we may call it, to the rank of 
commoners. f As it was beyond the com- 
petence of the republic of Florence to 
change a man's ancestors, this nominal 
alteration left all the real advantages of 
birth as they were, and was undoubtedly 
an enhancement of dignity, though in 
appearance a very singular one. Con 



* Villani, 1. x.,c. 81. Castruccio .... corse 
la citta di Pisa due volte. — Sismondi, t. v., p. 105. 

t Villani, 1. xii., c. 18-23. Sismondi says, by a 
niomentary oversight, cinq cent trente families, t. 
v., p. 377. There were but thirty-seven noble fam- 
ilies at Florence; as M. Sismondi himself informs 
us, t. iv., p. C6 ; though Villani reckons the number 
of individuals at 1500. Nobles, or gratuli, as they 
are more strictly called, were such as had been 
inscribed, or rather proscribed, as such in the ordi- 
nances of justice ; at least I do not know what 
other definition there was. 



Part II.J 



ITALY. 



161 



versely, several unpopular commoners 
were ennobled, in order to disfranchise 
them. Nothing was more usual, in sub- 
sequent times, than such an arbitrary 
change of rank, as a penalty or a benefit.* 
Those nobles who were rendered ple- 
beian by favour, were obliged to change 
their name and arms.f The constitution 
now underwent some change. From six 
the priors were increased to eight ; and, 
instead of being chosen from each of the 
greater arts, they were taken from the 
four quarters of the city, the lesser arti- 
sans, as I conceive, being admissible.* 
The gonfaloniers of companies were re- 
duced to sixteen. And these, along with 
the signiory, and the twelve buonuomini, 
formed the college, where every propo- 
sition was discussed before it could be 
offered to the councils for their legislative 
sanction. But it could only originate, 
strictly speaking, in the signiory, that is, 
the gonfalonier of justice and eight 
priors, the rest of the college having 
merely the function of advice and assist- 
ance. |: 

Several years elapsed before any ma- 
terial disturbance arose at Florence. Her 
contemporary historian complains in- 
deed that mean and ignorant persons 
obtained the office of prior, and ascribes 
some errors in her external policy to this 
cause. ^ Besides the natural effects of 
the established rotation, a particular law, 
called the divieto, tended to throw the 
better families out of public office. By 
this law, two of the same name could 
not be drawn for any magistracy : which, 
as the ancient families were extremely 
numerous, rendered it difficult for their 
members to succeed; especially as a 
ticket once drawn was not replaced in 
the purse, so that an individual liable to 
the divieto was excluded until the next 
biennial revolution. || This created dis- 
satisfaction among the leading families. 
They were likewise divided by a new fac- 
tion, entirely founded, as far as appears, 
on personal animosity between two prom- 
inent houses, the Albizi and the Ricci. 
The city was however tranquil, when, in 
1357, a spring was set in motion, which 



*■ Messer Antonio di Baldinaccio degli Adimari, 
tutto che fosse de piu grandi e nobili, per grazia era 
rnesso tra '1 popolo. — Villani, 1. xii., c. 108. 

t Ammirato, p. 748. There were several ex- 
ceptions to this rule in later times. The Pazzi 
were made popolani, plebeians, by favour of Cosmo 
de' Medici. — Machiavelli. 

t Nardi, Storia di Firenze, p. 7, edit. 1584. 
Villani, loc. cit. 

^ Matteo Villani, in Script. Rer, Italic, t, xiv., 
p. 98-244. 

II Sismondi, t. vi., p. 338. 



gave quite a different character to the 
domestic history of Florence. 

At the time when the Guelfs, with the 
assistance of Charles of Anjou, acquired 
an exclusive domination in the republic, 
the estates of the Ghibehns were confis- 
cated. One third of these confiscations 
was allotted to the state ; another went 
to repair the losses of Guelf citizens ; but 
the remainder became the property of a 
new corporate society, denominated the 
Guelf party (parte Guelfa) with a regular 
internal organization. The Guelf party 
had two councils, one of fourteen and 
one of sixty members ; three, or after- 
ward four, captains, elected by scrutiny 
every two months, a treasury, and com- 
mon seal ; a little republic within the re- 
public of Florence. Their primary duty 
was to watch over the Guelf interest; 
and for this purpose they had a particular 
officer for the accusation of suspected 
Ghibelins.* We hear not much, how- 
ever, of the Guelf society for near a 
century after their establishment. The 
Ghibelins liardly ventured to show them- 
selves after the fall of the White Guelfs 
in 1304, with whom they had been con- 
nected, and confiscation had almost anni- 
hilated that unfortunate faction. But, as 
the oligarchy of Guelf families lost part 
of its influence through the divieto and 
system of lottery, some persons of Ghib- 
elin descent crept into public offices ; and 
this was exaggerated by the zealots of an 
opposite party, as if the fundamental pol- 
icy of the city was put into danger. 

The Guelf society had begun, as early 
as 1346, to manifest some disquietude at 
the foreign artisans, who, settling at Flo- 
rence, and becoming members of some 
of the trading corporations, pretended to 
superior offices. They procured accord- 
ingly a law, excluding from public trust 
and magistracy all persons not being na- 
tives of the city or its territory. Next 
year they advanced a step farther; and, 
with the view to prevent disorder, which 
seemed to threaten the city, a law was 
passed, declaring every one, whose an- 
cestors at any time since 1300 had been 
known Ghibelins, or who had not the 
reputation of sound Guelf principles, in- 
capable of being drawn or elected to of- 
fices.! It is manifest, from the language 
of the historian who relates these cir- 
cumstances, and whose testimony is more 
remarkable from his having died several 
years before the politics of the Guelf cor- 
poration more decidedly showed them- 
selves, that the real cause of their jeal- 



* G. Villani, 1. vii., c. 16. 
t Ibid., 1. xii., c. 72 and 7!). 



162 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



ousy was not the increase of Ghibelinism, 
a merely plausible pretext, but the dem- 
ocratical character which the govern- 
ment had assumed, since the revolution 
of 1343 ; which raised the fourteen infe- 
rior arts to the level of those which the 
great merchants of Florence exercised. 
In the Guelf society, the ancient nobles 
retained a considerable influence. The 
laws of exclusion had never been applied 
to that corporation. Two of the captains 
were always noble, two were common- 
ers. The people, in debarring the nobil- 
ity from ordinary privileges, were little 
aware of the more dangerous chaimel 
which had been left open to their ambi- 
tion. "With the nobility some of the great 
commoners acted in concert, and espe- 
cially the family and faction of the Albizi. 
The introduction of obscure persons into 
office still continued, and some measures 
more vigorous than the law of 1347 seem- 
ed necessary to restore the influence of 
their aristocracy. They proposed, and, 
notwithstanding the reluctance of the 
priors, carried by violence, both in the 
preliminary deliberations of the signiory, 
and in the two councils, a law by which 
every person accepting an office who 
should be convicted of Ghibelinism or of 
Ghibelin descent, upon testimony of pub- 
lic fame, became liable to punishment, 
capital or pecuniary, at the discretion of 
the priors. To this law they gave a re- 
trospective eff"ect, and indeed it appears 
to have been little more than a revival of 
the provisions made in 1347, which had 
probably been disregarded. Many citi- 
zens, who had been magistrates within a 
few years, were cast in heavy fines on 
this indefinite charge. But the more usu- 
al practice was to warn (ammonire) men 
beforehand against undertaking public 
trust. If they neglected this hint, they 
were sure to be treated as convicted 
Ghibelins. Thus a very numerous class, 
called Ammoniti, was formed of proscri- 
bed and discontented persons, eager to 
throw off" the intolerable yoke of the 
Guelf society. For the imputation of 
Ghibelin connexions was generally an 
unfounded pretext for crushing the ene- 
mies of the governing faction.* Men of 

* Besides the effect of ancient prejudice, Ghibe- 
linism was considered at Florence, in the four- 
teenth century, as immediately connected with ty- 
rannical usurpation. The Guelf party, says Mat- 
teo Villani, is the foundation rock of liberty in Ita- 
ly ; so that, if any Guelf becomes a tyrant, he must 
of necessity turn to the Ghibelin side ; and of this 
there have been many instances, p. 481. So Gio- 
vanni ViUani says of Passerino, lord of Mantua, 
that his ancestors had been Giielfs, ma per essere 
eignore e tiranno si fece Ghibellino, 1. x., c. 99. 



approved Guelf principles and origin were 
every day warned from their natural 
privileges of sharing in magistracy. This 
spread a universal alarm through the city ; 
but the great advantage of union and se- 
cret confederacy rendered the Guelf so- 
ciety, who had also the law on their side, 
irresistible by their opponents. Mean- 
while the public honour was well sup- 
ported abroad ; Florence had never be- 
fore been so distinguished as during the 
prevalence of this oligarchy.* 

The Guelf society had governed with 
tnore or less absoluteness for near twen- 
ty years, when the republic became in- 
volved, through the perfidious conduct 
of the papal legate, in a war with the 
Holy See. Though the Florentines were 
by no means superstitious, this hostility 
to the church appeared almost an ab- 
surdity to determined Guelfs, and shock- 
ed those prejudices about names which 
make up the politics of vulgar minds. 
The Guelf society, though it could not 
openly resist the popular indignation 
against Gregory XL, was not heartily in- 
clined to this war. Its management fell 
therefore into the hands of eight commis- 
sioners, some of them not Avell aff'ected 
to the society ; whose administration was 
so successful and popular as to excite the 
utmost jealousy in the Guelfs. They be- 
gan to renew their warnings, and in eight 
months excluded fourscore citizens. f 

The tyranny of a court may endure for 
ages ; but that of a faction is seldom per- 
manent. In June, 1378, the gonfalonier 
of justice was Salvestro de' Medici, a 
man of approved patriotism, whose fam- 
ily had been so notoriously of Guelf prin- 
ciples that it was impossible to warn him 
from office. He proposed to mitigate the 
severity of the existing law. His propo- 
sition did not succeed; but its rejection 
provoked an insurrection, the forerunner 
of still more alarming tumults. The pop- 
ulace of Florence, like that of other cit- 
ies, was terrible in the moment of sedi- 
tion ; and a party so long dreaded shrunk 
before the physical strength of the multi- 
tude. Many leaders of the Guelf society 
had their houses destroyed, and some 
fled from the city. But instead of annul- 
ling their acts, a middle course was adopt- 
ed by the committee of magistrates who 
had been empowered to reform the state ; 
the Atamoniti were suspended three 

And Matteo Villani of the PepoU at Bologna ; es- 
sendo di natura Guelfi, per la tirannia erano quasi 
alienati della parte, d. 69. 

* M. Villani, p. 581, 637,731. Ammirato. Ma- 
chiavelli. Sismondi. 

t Ammirato, p. 709. 



Part II.] 



ITALY 



163 



years longer from office, and the Guelf 
society preserved with some hmitations. 
This temporizing course did not satisfy- 
either the Ammoniti or the populace. 
The greater arts were generally attached 
to the Guelf society. Between them and 
the lesser arts, composed of retail and 
mechanical traders, there was a strong 
jealousy. The latter were adverse to the 
prevailing oligarchy, and to the Guelf so- 
ciety, by whose influence it was main- 
tained. They were eager to make Flo- 
rence a democracy in fact as well as in 
name, by participating in the executive 
government. 

But every pohtical institution appears 
to rest on too confined a basis, to those 
whose point of view is from beneath it. 
While the lesser arts were murmuring at 
the exclusive privileges of the commer- 
cial aristocracy, there was yet an inferior 
class of citizens, who thought their own 
claims to equal privileges irrefragable. 
The arrangement of twenty-one trading 
companies had still left several kinds of 
artisans unincorporated, and consequent- 
ly unprivileged. These had been attach- 
ed to the art with which their craft had 
most connexion, in a sort of dependant 
relation. Thus, to the company of dra- 
pers, the most wealthy of all the various 
occupations instrumental in the manufac- 
ture, as wool-combers, diers, and weav- 
ers, were appendant.* Besides the sense 
of political exclusion, these artisans alle- 
ged, that they were oppressed by their 
employers of the art, and that when they 
complained to the consul, their judge in 
civil matters, no redress could be procu- 
red. A still lower order of the commu- 
nity was the mere populace, who did not 
practise any regular trade, or who only 
worked for daily hire. These were call- 
ed Ciompi, a corruption, it is said, of the 
French compere. 

" Let no one," says Machiavel in this 
place, " who begins an innovation in a 
state, expect that he shall stop it at his 
pleasure, or regulate it according to his 
intention." After about a month from 
the first sedition, another broke out, in 
which the ciompi, or lowest populace, 
were alone concerned. Through the sur- 
prise, or cowardice, or disaffection of the 
superior citizens, this was suffered to 
get ahead, and for three days the city was 
in the hand of a tumultuous rabble. It 
was vain to withstand their propositions, 
had they even been more unreasonable 
than they were. But they only demand- 



* Before the year 1310, according to Villani's cal- 
culation, the woollen trade occupied 30,000 per- 
sons, 1. xi., c. 93. 
L2 



ed the establishment of two new arts for 
the trades hitherto dependant, and one for 
the lower people ; and that three of the 
priors should be choseii from tlie greater 
arts, three from the fourteen lesser, and 
two from those just created. Some de- 
lay, however, occurring to prevent the 
sanction of these innovations by the 
councils, a new fury took possession of 
the populace ; the gates of the palace be- 
longing to the signiory were forced open, 
the priors compelled to fly, and no ap- 
pearance of a constitutional magistracy 
remained to throw the veil of law over the 
excesses of anarchy. The republic seem- 
ed to rock from its foundation, and the 
circumstance to which historians ascribe 
its salvation is not the least singular in 
this critical epoch. One Michel di Lan- 
do, a wool-carder, half dressed and with- 
out shoes, happened to hold the standard 
of justice wrested from the proper ofli- 
cer when the populace burst into the pal- 
ace. Whether he was previously con- 
spicuous in the tumult is not recorded ; 
but the wild capricious mob, who had de- 
stroyed what they had no conception how 
to rebuild, suddenly cried out that Lando 
should be gonfalonier or signior, and re- 
form the city at his pleasure. 

A choice, arising probably from wan- 
ton folly, could not have been better 
made by wisdom. Lando was a. man of 
courage, moderation, and integrity. He 
gave immediate proofs of these qualities 
by causing his office to be respected. 
The eight commissioners of the war, 
who, though not instigators of the sedi- 
tion, were well pleased to see the Guelf 
party so entirely prostrated, now fancied 
themselves masters, and began to nomi- 
nate priors. But Lando sent a message 
to them that he was elected by the peo- 
ple, and that he could dispense with their 
assistance. He then proceeded to the 
choice of priors. Three were taken 
from the greater arts ; three from the 
lesser ; and three from the two new arts 
and the lower people. This eccentric 
college lost no time in restoring tranquil- 
lity, and compelled the populace by threat 
of punishment to return to their occupa- 
tions. But the ciompi were not disposed 
to give up the pleasures of anarchy so 
readily. They were dissatisfied at the 
small share allotted to them in the new 
distribution of offices, and murmured at 
their gonfalonier as a traitor to the popu- 
lar cause. Lando was aware that an in- 
surrection was projected ; he took meas- 
ures with the most respectable citizens ; 
the insurgents, when they showed them- 
selves, were quelled by force, and the 



104 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



gonfalonier retired from office with an 
approbation which all historians of Flo- 
rence have agreed to perpetuate. Part 
of this has undoubtedly been founded on 
a consideration of the mischief which it 
was in his power to inflict. The ciompi, 
once checked, were soon defeated. The 
next gonfalonier was, like Lando, a wool- 
comber; but, wanting the intrinsic merit 
of Lando, his mean station excited uni- 
versal contempt. None of the arts could 
endure their low coadjutors ; a short 
struggle was made by the populace, but 
they were entirely overpowered with 
considerable slaughter, and the govern- 
ment was divided between the seven 
greater and sixteen lesser arts in nearly 
equal proportions. 

The party of the lesser arts, or inferior 
tradesmen, which had begun this confu- 
sion, were left winners when it ceased. 
Three men of distinguished families, who 
had instigated the revolution, became the 
leaders of Florence ; Benedetto Alberti, 
Tomaso Strozzi, and Georgio Scali. 
Their government had at first to contend 
with the ciompi, smarting under loss and 
disappointment. But a populace which 
is beneath the inferior mechanics may 
with ordinary prudence be kept in sub- 
jection by a government that has a well- 
organized militia at its command. The 
Guelf aristocracy was far more to be 
dreaded. Some of them had been ban- 
ished, some fined, some ennobled ; the usu- 
al consequences of revolution, which they 
had too often practised to complain. A 
more iniquitous proceeding disgraces the 
new administration. Under pretence of 
conspiracy, the chief of the house of Al- 
bizi, and several of his most eminent 
associates, were thrown into prison. So 
little evidence of the charge appeared, 
that the podesta refused to condemn 
them ; but the people were clamorous 
for blood, and half with, half without the 
forms of justice, these noble citizens 
were led to execution. The part he took 
in this murder sullies the fame of Bene- 
detto Alberti, who, in his general conduct, 
had been more uniformly influenced by 
honest principles than most of his con- 
temporaries. Those who shared with 
him the ascendency in the existing gov- 
ernment, Strozzi and Scali, abused their 
power by oppression towards their ene- 
mies and insolence towards all. Their 
popularity was of course soon at an end. 
Alberti, a sincere lover of freedom, sepa- 
rated himself from men who seemed to 
emulate the arbitrary government they 
had overthrown. An outrage of Scali, 
in rescuing a criminal from justice, 



brought the discontent to a crisis ; he 
was arrested, and lost his head on the 
scaflbld ; while Strozzi, his colleague, 
fled from the city. But this event was 
instantly followed by a reaction, which 
Alberti perhaps did not anticipate. Armed 
men filled the streets ; the cry of Live the 
Guelfs was heard. After a three years 
depression, the aristocratical party re- 
gained its ascendant. They did not re- 
vive the severity practised towards the 
Ammoniti ; but the two new arts, created 
for the small trades, were abolished, and 
the lesser arts reduced to a third part, in- 
stead of something more than one half 
of public offices. Several persons who 
had favoured the plebeians were sent 
into exile ; and among these Michel de 
Lando, whose great services in subduing 
anarchy ought to have secured the pro- 
tection of every government. Benedetto 
Alberti, the enemy by turns of every fac- 
tion, because every faction was in its turn 
oppressive, experienced some years after- 
ward the same fate. For half a century 
after this time, no revolution took place 
at Florence. The Guelf aristocracy, 
strong in opulence and antiquity, and ren- 
dered prudent by experience, under the 
guidance of the Albizi family, maintained 
a preponderating influence without much 
departing, the times considered, fi'om 
moderation and respect for the laws.* 

It is sufficiently manifest, from this 
sketch of the domestic history of Flo 
rence, how far that famous republic was 
from afibrding a perfect security for civil 
rights or general tranquillity. They who 
hate the name of free constitutions may 
exult in her internal dissensions, as in 
those of Athens or Rome. But the calm 
philosopher will not take his standard of 
comparison from ideal excellence, nor 
even from that practical good which has 
been reached in our own unequalled con- 
stitution, and in some of the republics ol 
modern Europe. The men and the in- 
stitutions of the fourteenth century are 
to be measured by their contemporaries. 
Who would not rather have been a citi- 
zen of Florence than a subject of the 
Visconti 1 hi a superficial review of his- 
tory, we are sometimes apt to exaggerate 

♦ For this part of Florentine history, besides 
Ammirato, Machiavel, and Sismondi, I have read 
an interesting narrative of the sedition of the ci- 
ompi, by Gino Capponi, in the eighteenth volume of 
Muratori's collection. It has an air of liveliness 
and truth which is very pleasing, but it breaks off 
rather too soon, at the instant of Lando's assuming 
the office of banneret. Another contemporary 
writer, Melchione de Stefani, who seems to have 
furnished the materials of the three historians 
above mentioned, has not fallen in my way. 



Part IL] 



ITALY. 



165 



the vices of free states, and to lose sight 
of those inherent in tyrannical power. 
The bold censoriousness of republican 
historians, and the cautious servihty of 
writers under an absolute monarchy, 
conspire to mislead us as to the relative 
prosperity of nations. Acts of outrage 
and tumultuous excesses in a free state 
are blazoned in minute detail, and de- 
scend to posterity ; the deeds of tyranny 
are studiously and perpetually suppressed. 
Even those historians who have no par- 
ticular motives for concealment turn 
away from the monotonous and disgust- 
ing crimes of tyrants. " Deeds of cruel- 
ty," it is well observed by Matteo Villani, 
after relating an action of Bernabo Vis- 
conti, " are httle worthy of remembrance ; 
yet let me be excused for having recount- 
ed one out of many, as an example of the 
peril to which men are exposed under 
the yoke of an unbounded tyranny."* 
The reign of Bernabo afforded abundant 
instances of a like kind. Second only to 
Eccelin among the tyrants of Italy, he 
rested the security of his dominion upon 
tortures and death, and his laws them- 
selves enact the protraction of capital 
punishment through forty days of suffer- 
ing.! His nephew, Giovanni Maria, is 
said, with a madness like that of Nero or 
Commodus, to have coursed the streets 
of Milan by night with bloodhounds, 
ready to chase and tear any unlucky pas- 
senger.J Nor were other Italian princi- 
palities free from similar tyrants, though 
none perhaps on the whole so odious as 
the Visconti. The private history of 
many families, such for instance as the 
Scala and the Gonzaga, is but a series of 
assassinations. The ordinary vices of 
mankind assumed a teint of portentous 
guilt in the palaces of Italian princes. 
Their revenge was fratricide, and their 
lust was incest. 

Though fertile and populous, the prop- 
Acquisitions 6r district of Florence was by 
of territory no means extensive. An inde- 
by Florence. pe„(ient uobility occupied the 
Tuscan Apennines with their castles. Of 
these the most conspicuous were the 
counts of Guidi, a numerous and power- 
ful family, who possessed a material in- 
fluence in the affairs of Florence and of 
aU Tuscany till the middle of the four- 
teenth century, and some of whom pre- 
served their independence much longer.!^ 

* P. 434. 

t Sismondi, t. vi., p. 316. Corio, 1st. di Milano, 
p. 486. 

t Corio, p. 595. 

^ G. Villani, 1. v., c. 37, 41, et alibi. The last of 
he counts Guidi, having unwisely embarked in a 



To the south, the republics of Arezzo, 
Perugia, and Siena; to the west, those 
of Volterra, Pisa, and Lucca ; Prato and 
Pistoja to the north, limited the Floren- 
tine territory. It \vas late before these 
boundaries were removed. During the 
usurpations of Uguccione at Pisa, and of 
Castruccio at Lucca, the republic of Flo- 
rence was always unsucce.isful in the field. 
After the death of Castruccio she began 
to act more vigorously, and engaged in 
several confederacies with the powers of 
Lombardy, especially in a league with 
Venice against Mastino della Scala. But 
the republic made no acquisition of ter- 
ritory till 1351, when she annexed the 
small city of Prato, not ten miles from 
her walls.* Pistoja, though still nomi- 
nally independent, received a Florentine 
garrison about the same time. Several 
additions were made to the district, by fair 
purchase from the nobility of the Apen- 
nines, and a few by main force. The 
territory was still very little proportion- 
ed to the fame and power of Florence, 
The latter was founded upon her vast 
commercial opulence. Every Italian 
state employed mercenary troops, and the 
richest was of course the most powerful. 
In the war against Mastino della Scala, 
in 1336, the revenues of Florence are 
reckoned by Villani at three hundred 
thousand florins ; which, as he observes, 
is more than the King of Naples or of 
Aragon possesses.! The expenditure 
went at that time very much beyond the 
receipt, and was defrayed by loans from 
the principal mercantile firms, which 
were secured by public funds ; the earli- 
est instance, I believe, of that financial 
resource. I Her population was computed 
at ninety thousand souls. Villani reck- 
ons the district at eighty thousand men, 
I presume those only of military age ; 
but this calculation must have been too 
large, even though he included, as we 

confederacy against Florence, was obliged to give 
up his ancient patrimony in 1440. 

* M. Villani, p. 72. This was rather a measure 
of usurpation; but the republic had some reason to 
apprehend that Prato might fall into the hands of 
the Visconti. Their conduct towards Pistoja was 
influenced by the same motive ; but it was still fur- 
ther removed from absolute justice, p. 91. 

t G. Villani, 1. xi., c. 90-93. These chapters 
contain a very full and interesting statement of the 
revenues, expenses, population, and internal con- 
dition of Florence at that time. Part of them is 
extracted by M. Sismondi, t. v., p. 365. The gold 
florin was worth about ten shillings of our money. 
The district of Florence was not then mucn larger 
than Middlesex, At present the revenues of tho 
whole dutchy of Tuscany are much less than 
150,000?. sterling ; though the difference in the value 
of money is very considerable. 

t G. Villani, 1. xi., c. 49. 



166 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



may presume, the city in his estimate.* 
Tuscany, though well cultivated and 
flourishing, does not contain by any means 
so great a number of inhabitants in that 
space at present. 
The first eminent conquest made by 
Florence was that of Pisa, early in 
'^^' the fifteenth century. Pisa had been 
distinguished as a commercial city ever 
since the age of the Othos. From 
her ports, and those of Genoa, the ear- 
liest naval armaments of the western 
nations were fitted out against the Sara- 
cen corsairs who infested the Mediterra- 
nean coasts. In the eleventh century 
she undertook, and, after a pretty long 
struggle, completed, the important, or at 
least the splendid conquest of Sardinia; 
an island long subject to a Moorish chief- 
tain. Several noble families of Pisa, who 

* C. 93. Troviamo diligentemente, che in questi 
tempi avea in Firenze circa a 25 mila uomini da 
portare arme da 15 in 70 anni — Istamavasi avere 
in Firenze da 90 mila bocche tra uomini e femine e 
fanciuUi, per 1' avviso del pane bisognava al contin- 
avo alia citta. These proportions of 25,000 men 
between fifteen and seventy, and of 90,000 souls, 
are as nearly as possible consonant to modern cal- 
culation, of which Villani knew nothing, which 
confirms his accuracy ; though M. Sismondi asserts, 
p. 369, that the city contained 150,000 inhabitants, 
on no better authority, as far as appears, than that 
of Boccaccio, who says that 100,000 perished in the 
great plague of 1348, which was generally suppo- 
sed to destroy two out of three. But surely two 
vague suppositions are not to be combined, in or- 
der to overthrow such a testimony as that of Vil- 
lani, who seems to have consulted all registers and 
other authentic documents in his reach. 

What Villani says of the population of the dis- 
trict may lead us to reckon it, perhaps, at about 
180,000 souls, allowing the baptisms to be one in 
thirty of the population. Ragionavasi in questi 
tempi avere nel contado e distretto di Firenze de 
80 mila uomini. Troviamo del piovano, che bat- 
tezzava i fanciulli, imperocheper ogni maschio, che 
battezzava in San Giovanni, per avere il novero, 
metea una fava nera, e per ogni feminauna bianca, 
trovo, ch' erano I'anno m questi tempi dalle 5800 
in sei mila, avanzando le piu volte il sesso mascu- 
lino da 300 in 500 per anno. Baptisms could only 
be performed in one public font, at Florence, Pisa, 
and some other cities. The building that contam- 
ed this font was called the baptistery. The bap- 
tisteries of Florence and Pisa still remain, and are 
well known. — Du Cange, v. Baptisterium. But 
there were fifty-seven parishes, and one hundred 
and ten churches within the city. — Villani, ibid. 
Mr. Roscoe has published a manuscript, evidently 
written after the taking of Pisa, in 1406, though, as 
I should guess, not long after that event, contain- 
ing a proposition for an income tax of ten per cent, 
throughout the Florentine dominions. Among its 
other calculations, the population is reckoned at 
400,000 ; assuming that to be the proportion to 
80,000 men of military age, though certainly be- 
yond the mark. It is singular that the district of 
Florence, in 1343, is estimated by Villani to contain 
as great a number, before Pisa, Volterra, or even 
Prato and Pistoja had been annexed to it. — Ros- 
coe's Life of Lorenzo, Appendix, No. 16. 



had defrayed the chief cost of this expe- 
dition, shared the island in districts, 
which they held in fief of the republic* 
At a later period the Balearic isles were 
subjected, but not long retained by Pisa. 
Her naval prowess was supported by her 
commerce. A writer of the twelfth cen- 
tury reproaches her with the Jews, the 
Arabians, and other "monsters of the 
sea," who thronged in her streets. f The 
crusades poured fresh wealth into the lap 
of the maritime Italian cities. In some 
of those expeditions a great portion of 
the armament was conveyed by sea to 
Palestine, and freighted the vessels of 
Pisa, Genoa, and Venice. When the 
Christians had bought with their blood 
the seacoast of Syria, these republics 
procured the most extensive privileges 
in the new states that were formed out of 
their slender conquests, and became the 
conduits through which the produce of 
the East flowed in upon the ruder natives 
of Europe. Pisa maintained a large 
share of this commerce, as well as of 
maritime greatness, till near the end of 
the thirteenth century. In 1282, we are 
told by Villani, she was in great power, 
possessing Sardinia, Corsica, and Elba ; 
from whence the republic, as well as pri- 
vate persons, derived large revenues ; 
and almost ruled the sea by their ships 
and merchandises, and beyond sea were 
very powerful in the city of Acre, and 
much connected with the principal citi- 
zens of Acre. J The prosperous era of 
the Pisans is marked by their public edi- 
fices. She was the first Italian city that 
took a pride in architectural magnificence. 
Her cathedral is of the eleventh century ; 
the baptistery, the famous inclined tower, 
or belfry, the arcades that surround the 
Campo Santo, or cemetery of Pisa, are of 
the twelfth, or at latest, of the thirteenth.^ 
It would have been no slight anomaly 
in the annals of Italy, or, we might say, 
of mankind, if two neighbouring cities, 
competitors in every mercantile occupa- 
tion and every naval enterprise, had not 
been perpetual enemies to each other. 
One is more surprised, if the fact be true, 
that no war broke out between Pisa and 
Genoa till 1119.|| From this time at least 

* Sismondi, t. i., p. 345, 372. 
t Qui pergit Pisas, videt illic monstra marina ; 
Haec urbs Paganis, Turchis, Libycis quoque, 

Parthis, 
Sordida ; Chaldnei sua lustrant mcenia tetri. 
Donizo, Vita Comitissce Mathildls, apud Mu- 
ratori, Dissert. 31. 
t Villani, l.vi., c. 83. 

^ Sismondi, t. iv., p. 178. Tiraboschi, t. iii., p. 
400. 
II Muratori, ad ann. 1119. 



Part II.] 



ITALY. 



167 



they continually recurred. An equality 
of forces and of courage kept the conflict 
uncertain for the greater part of two cen- 
turies. Their battles were numerous, 
and sometimes, taken separately, deci- 
sive ; but the public spirit and resources 
of each city were called out by defeat, 
and we generally find a new armament 
replace the losses of an unsuccessful 
combat. In this respect, the naval con- 
test between Pisa and Genoa, though 
much longer protracted, resembles that of 
Rome and Carthage in the first Punic war. 
But Pisa was reserved for her ^Egades. 
In one fatal battle, oflT the little isle of 
Meloria, in 1284, her whole navy was 
destroyed. Several unfortunate and ex- 
pensive armaments had almost exhausted 
the state ; and this was the last eff"ort, by 
private sacrifices, to equip one more fleet. 
After this defeat it was in vain to con- 
tend for empire. Eleven thousand Pi- 
sans languished for many years in prison ; 
it was a current saying, that whoever 
would see Pisa, should seek her at Ge- 
noa. A treacherous chief, that Count 
Ugolino, whose guilt was so terribly 
avenged, is said to have purposely lost 
the battle, and prevented the ransom of 
the captives, to secure his power ; accu- 
sations that obtain easy credit with an 
unsuccessful people. 

From the epoch of the battle of Melo- 
ria, Pisa ceased to be a maritime power. 
Forty years afterward she was stripped 
of her ancient colony, the Island of Sar- 
dinia. The four Pisan families who had 
been invested with that conquest had 
been apt to consider it as their absolute 
property ; their appellation of judge 
seemed to indicate deputed power; but 
they sometimes assumed that of king ; 
and several attempts had been made to 
establish an immediate dependance on 
the empire, or even on the pope. A new 
potentate had now come forward on the 
stage. The malecontent feudataries of 
Sardinia made overtures to the King of 
Aragon, who had no scruples about at- 
tacking the inilisputable possession of a 
declining republic. Pisa made a few un- 
availing efforts to defend Sardinia; but 
the noiftinal superiority was hardly worth 
a contest, and she surrendered her rights 
to the crown of Aragon. Her commerce 
now dwindled with her greatness. Du- 
ring the fourteenth century, Pisa almost 
renounced the ocean, and directed her 
main attention to the politics of Tusca- 
ny. GhibeUn by invariable predilection, 
she was in constant opposition to the 
Guelf cities which looked up to Flo- 
rence. But in the fourteenth century the 



names of freeman and Ghibelin were not 
easily united ; and a city in that interest 
stood insulated between the republics of 
an opposite faction and the tyrants of 
her own. Pisa fell several times under 
the yoke of usurpers ; she was included 
in the wide-spreading acquisitions of 
Gian Galeazzo Visconti ; at his death 
one of his family seized the dominion, 
and finally, the Florentines purchased 
for 400,000 florins a rival and once equal 
city. The Pisans made a resistance 
more according to what they had been 
than what they were. 

The early history of Genoa, in all her 
foreign relations, is involved in Genoa.— 
that of Pisa. As allies against Her wars 
the Saracens of Africa, Spain, and the 
Mediterranean islands, as co-rivals in 
commerce with these very Saracens, or 
with the Christians of the East, as co-op- 
erators in the great expeditions under the 
banner of the cross, or as engaged in 
deadly warfare with each other, the two 
republics stand in continual parallel. 
From the beginning of the thirteenth 
century, Genoa was, I think, the more 
prominent and flourishing of the two. 
She had conquered the Island of Corsica 
at the same time that Pisa reduced Sar- 
dinia; and her acquisition, though less 
considerable, was longer preserved. Her 
territory at home, the ancient Liguria, 
was much more extensive, and, what 
was most important, contained a greater 
range of seacoast than that of Pisa. 
But the commercial and maritime pros- 
perity of Genoa may be dated from the 
recovery of Constantinople by the Greeks 
in 1261. Jealous of the Venetians, by 
whose arms the Latin emperors had been 
placed, and were still maintained on their 
throne, the Genoese assisted Palaeologus 
in overturning that usurpation. They 
obtained in consequence the suburb of 
Pera or Galata over against Constantino- 
ple as an exclusive settlement, where 
their colony was ruled by a magistrate 
sent from home, and frequently defied 
the Greek capital with its armed galleys 
and intrepid seamen. From this conve- 
nient station Genoa extended her com- 
merce into the Black Sea, and established 
her principal factory at Cafla, in the Cri- 
mean peninsula. This commercial mo- 
nopoly, for such she endeavoured to ren- 
der it, aggravated the animosity of Ven- 
ice. As Pisa retired from the And Venice, 
field of waters, a new enemy 
appeared upon the horizon to dispute the 
maritime dominion of Genoa. Her first 
war with Venice was in I25S. The sec- 
ond was not till after the victory of Me- 



168 



EUROPE DUKING THE MIDDLE AGES. 



[Chap. III. 



loria had crushed her more ancient ene- 
my. It broke out in 1293, and was pros- 
ecuted with determined fury, and a great 
display of naval strength on both sides. 
One Genoese armament, as we are as- 
sured by an historian, consisted of one 
hundred and fifty-five galleys, each man- 
ned with from two hundred and twenty 
to three hundred sailors ;* a force aston- 
ishing to those who know the slender re- 
sources of Italy in modern times, but 
which is rendered credible by several 
analogous facts of good authority. It 
was, however, beyond any other exer- 
tion. The usual fleets of G enoa and Ven- 
ice were of seventy to ninety galleys. 
, Perhaps the naval exploits of these 
two republics may afford a more inter- 
esting spectacle to some minds than any 
other part of Italian history. Compared 
with military transactions of the same 
age, they are more sanguinary, more 
brilliant, and exhibit full as much skill 
and intrepidity. But maritime warfare is 
scanty in circumstances, and the indefi- 
niteness of its locality prevents it from 
resting in the memory. And though the 
wars of Genoa and Venice were not 
always so unconnected with territorial 
pohtics as those of the former city with 
Pisa, yet, from the alternation of success 
and equality of forces, they did not often 
produce any decisive effect. One mem- 
orable encounter in the Sea of Marmora, 
where the Genoese fought and conquered 
single-handed against the Venetians, the 
Catalans, and the Greeks, hardly belongs 
to Italian history. f 

But the most remarkable war, and that 
War of productive of the greatest conse- 
chioggia. quenccs, was one that commen- 
ced in 1378, after several acts of hostility 
in the Levant, wherein the Venetians 
appear to have been the principal ag- 
gressors. Genoa did not stand alone in 
this war. A formidable confederacy was 
exerted against Venice, who had given 
provocation to many enemies. Of this 
Francis Carrara, signor of Padua, and 
the King of Hungary, were the leaders. 
But the principal struggle was, as usual, 
upon the waves. During the winter of 
1378, a Genoese fleet kept the sea, and 
ravaged the shores of Dalmatia. The 
Venetian armament had been weakened 
by an epidemic disease, and when Vittor 
Pisani, their admiral, gave battle to the 
enemy, he was compelled to fight with a 
hasty conscription of landsmen against 
the best sailors in the world. Entirely 
defeated, and taking refuge at Venice 



* Muratori, A. D. 1295. 



t Gibbon, c. 63. 



with only seven galleys, Pisani was cast 
into prison, as if his ill fortune had been 
his crime. Meanwhile the Genoese fleet, 
augmented by a strong re-enforcement, 
rode before the long natural ramparts 
that separate the lagunes of A''enice from 
the Adriatic. Six passages intersect the 
islands which constitute this barrier, be- 
sides the broader outlets of Brondolo and 
Fossone, through which the waters of 
the Brenta and the Adige are discharged. 
The lagune itself, as is well known, con- 
sists of extremely shallow water, unnav- 
igable for any vessel, except along the 
course of artificial and intricate passages. 
Notwithstanding the apparent difficulties 
of such an enterprise, Pietro Doria, the 
Genoese admiral, determined to reduce 
the city. His first successes gave him 
reason to hope. He forced the passage, 
and stormed the little town of Chioggia,* 
built upon the inside of the isle bearing 
that name, about twenty-five miles south 
of Venice. Nearly four thousand prison- 
ers fell here into his hands : an augury, 
as it seemed, of a more splendid triumph. 
In the consternation this misfortune in- 
spired at Venice, the first impulse was 
to ask for peace. The ambassadors car- 
ried with them seven Genoese prisoners, 
as a sort of peace-offering to the admiral, 
and were empowered to make large and 
humiliating concessions, reserving noth- 
ing but the liberty of Venice. Francis 
Carrara strongly urged his allies to treat 
for peace. But the Genoese were stim- 
ulated by long hatred, and intoxicated by 
this unexpected opportunity of revenge. 
Doria, calling the ambassadors into coun- 
cil, thus addressed them : — " Ye shall 
obtain no peace from us, I swear to you, 
nor from the Lord of Padua, till first we 
have put a curb in the mouths of those 
wild horses that stand upon the place of 
St. Mark. When they are bridled, you 
shall have enough of peace. Take back 
with you your Genoese captives, for I 
am coming within a few days to release 
both them and their companions from 
your prisons." When this answer was 
reported to the senate, they prepared to 
defend themselves with the characteris- 
tic firmness of their government. -p]very 
eye was turned towards a great man 
unjustly punished, their admiral, Vittor 
Pisani. He was called out of prison to 
defend his country amid general accla- 
mations ; but, equal in magnanimity and 
simple republican patriotism to the no- 
blest characters of antiquity, Pisani re- 

♦ Chioggia, known at Venice by the name of 
Chioza, according to the usage ci the Venetian 
dialect, which changes the g into z. 



Part II.] 



ITALY. 



169 



pressed the favouring voices of the mul- 
titude, and bade them reserve their enthu- 
siasm for St. Mark, the symbol and war- 
cry of Venice. Under the vigorous com- 
mand of Pisani, the canals vv^ere fortified 
or occupied by large vessels, armed with 
artillery ; thirty-four galleys were equip- 
ped ; every citizen contributed according 
to his power; in the entire want of com- 
mercial resources (for Venice had not a 
merchant-ship during this war), private 
plate was melted ; and the senate held 
out the promise of ennobling thirty fami- 
lies, who should be most forward in this 
strife of patriotism. 

The new fleet was so ill provided with 
seamen, that for some months the admi- 
ral employed them only in manceuvring 
along the canals. From some unaccounta- 
ble supineness, or more probably from the 
insuperable difficulties of the undertaking, 
the Genoese made no assault upon the 
city. They had, indeed, fair grounds to 
hope its reduction by famine or despair. 
Every access to the continent was cut 
off by the troops of Padua ; and the King 
of Hungary had mastered almost all the 
Venetian towns in Istria and along the 
Dalmatian coast. The Doge Contarini, 
taking the chief command, appeared at 
length with his fleet near Chioggia, before 
the Genoese were aware. They were 
still less aware of his secret design. He 
pushed one of the large round vessels, 
then called cocche, into the narrow pas- 
sage of Chioggia, which connects the 
lagune with the sea, and mooring her 
athwart the channel, interrupted that com- 
munication. Attacked with fury by the 
enemy, this vessel went down on the spot, 
and the doge improved his advantage, by 
sinking loads of stones, until the passage 
became absolutely unnavigable. It was 
still possible for the Genoese fleet to 
follow the principal canal of the lagune 
towards Venice and the northern passa- 
ges, or to sail out of it by the harbour of 
Brondolo ; but whether from confusion 
or from miscalculating the dangers of 
their position, they sufi"ered the Vene- 
tians to close the canal upon them by the 
same means they had used at Chioggia, 
and even to place their fleet in the en- 
trance of Brondolo, so near to the lagune 
that the Genoese could not form their 
ships in line of battle. The circumstan- 
ces of the two combatants were tlius en- 
tirely changed. But the Genoese fleet, 
though besieged in Chioggia, was im- 
pregnable, and their command of the 
land secured them from famine. Ven- 
ice, notwithstanding her unexpected suc- 
cess, was still very far from secure ; it 



was difficult for the doge to keep hia 
position through the winter ; and if the 
enemy could appear in open sea, the risks 
of combat were extremely hazardous. It 
is said that the senate deliberated upon 
transporting the seat of their liberty to 
Candia, and that the doge had announced 
his intention to raise the siege of Chiog- 
gia, if expected succours did not arrive by 
the first of .January, 1380. On that very 
day, Carlo Zeno, an admiral, who, igno- 
rant of the dangers of his country, had 
been supporting the honour of her flag in 
tlie Levant and on the coasts of Liguria, 
appeared with a re-etiforcement of eigh- 
teen galleys and a store of provisions. 
From that moment the confidence of 
Venice revived. The fleet, now superior 
in strength to the enemy, began to attack 
them with vivacity. After several months 
of obstinate resistance, the Genoese, 
whom their republic had inefi"ectually 
attempted to relieve by a fresh arma- 
ment, blocked up in the town of. Chiog- 
gia, and pressed by hunger, were obliged 
to surrender. Nineteen galleys only out 
of forty-eight were in good condition ; 
and the crews were equally diminished 
in the ten months of their occupation 
of Chioggia. The pride of Genoa was 
deemed to be justly humbled ; and even 
her own historian confesses, that God 
would not suff'er so noble a city as Venice 
to become the spoil of a conqueror.* 

Each of the two republics had suffi- 
cient reason to lament their mutual pre- 
judices, and the selfish cupidity of their 
merchants, which usurps in all maritime 
countries the name of patriotism. ThouE^h 
the capture of Chioggia did not terminate 
the war, both parties were exhausted, 
and willing next year to accept the me- 
diation of the Duke of Savoy. By the 
peace of Turin, Venice surrendered most 
of her territorial possessions to the King 
of Hungary. That prince, and Francis 
Carrara, were the only gainers. Genoa 
obtained the Isle of Tenedos, one of the 
original subjects of dispute ; a poor in- 
demnity for her losses. Though, upon a 
hasty view, the result of this war appears 
more unfavourable to Venice, yet in fact 
it is the epoch of the decline of Genoa. 
From this time she never commanded 
the ocean with such navies as before ; 
her commerce gradually went into de- 
cay ; and the fifteenth century, the most 

* G. Stella, Annales Genuenses ; Gataro, Isto- 
ria Padovana. Both these contemporary works, 
of which the latter gives the best relation, are in 
the seventeenth volume of Muratori's collection. 
M. Sismondi's narrative is very clear and spirited. 
—Hist, des Republ. Ital., t. vii., p. 205-232. 



170 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill 



splendid in the annals of Venice, is, till 
recent times, the most ignominious in 
those of Genoa. But this was partly 
owing to internal dissensions, by which 
her liberty, as well as glory, was for a 
while suspended. 

At Genoa, as in other cities of Lom- 
Govern- hardy, the principal magistrates of 
mentof the republic were originally styled 
Genoa, consuls. A chronicle, drawn up 
under the inspection of the senate, per- 
petuates the names of these early magis- 
trates. It appears that their number va- 
ried from four to six, annually elected by 
the people in their full parliament. These 
consuls presided over the republic, and 
commanded the forces by land and sea ; 
while another class of magistrates, bear- 
ing the same title, were annually elected 
by the several companies into which the 
people were divided, for the administra- 
tion of civil justice.* This was the re- 
gimen of the twelfth century ;. but in the 
next, Genoa fell into the fashion of in- 
trusting the executive power to a foreign 
podesta. The podesta was assisted by a 
council of eight, chosen by the eight com- 
panies of nobility. This institution, if in- 
deed it were any thing more than a cus- 
tom or usurpation, originated probably 
not much later than the beginning of the 
thirteenth century. It gave not only an 
aristocratic, but almost an oligarchical 
character to the constitution, since many 
of the nobility were not members of these 
eight societies. Of the senate or coun- 
cils we hardly know more than their ex- 
istence ; they are very little mentioned 
by historians. Every thing of a general 
nature, every thing that required the ex- 
pression of public will, was reserved for 
the entire and unrepresented sovereignty 
of the people. In no city was the parlia- 
ment so often convened ; for war, for 
peace, for alliance, for change of govern- 
ment.! These very dissonant elements 
were not likely to harmonize. The peo- 
ple, sufficiently accustomed to the forms 
of democracy to imbibe its spirit, repi- 
ned at the practical influence which was 
thrown into the scale of the nobles. Nor 
did some of the latter class scruple to 
enter that path of ambition, which leads 
to power by flattery of the populace. 
Two or three times within the thirteenth 
century, a highborn demagogue had near- 
ly overturned the general liberty, like the 
Torriani at Milan, through the pretence 
of defending that of individuals. | Among 
the nobility themselves, four houses were 
distinguished beyond all the rest ; the 



"^ Sismondi, t. i., p. 353. 
t Id., t. iii., p. 319. 



t Id., p. 324. 



Grimaldi, the Fieschi, the Doria, the Spi- 
nola ; the two former of Guelf pohtics, 
the latter adherents of the empire.* Per- 
haps their equahty of forces, and a jeal- 
ousy which even the families of the same 
faction entertained of each other, pre- 
vented any one from usurping the signio- 
ry at Genoa. Neither the Guelf nor 
Ghibelin party obtaining a decisive pre- 
ponderance, continual revolutions occur- 
red in the city. The most celebrated was 
the expulsion of the Ghibelins under the 
Doria and Spinola, in 1318. They had 
recourse to the Visconti of Milan, and 
their own resources were not unequal to 
cope with their country. The Guelfa 
thought it necessary to call in Robert, 
king of Naples, always ready to give as- 
sistance as the price of dominion, and 
conferred upon him the temporary sover- 
eignty of Genoa. A siege of several 
years duration, if we believe an historian 
of that age, produced as many remarka- 
ble exploits as that of Troy. They have 
not proved so interesting to posterity. 
The Ghibelins continued for a length of 
time excluded from the city, but in pos- 
session of the seaport of Savona, whence 
they traded and equipped fleets, as a rival 
republic, and even entered into a separate 
war with Venice, f Experience of the 
uselessness of hostility, and the loss to 
which they exposed their common coun- 
try, produced a reconciliation, or rather a 
compromise, in 1331, when the Ghibehna 
returned to Genoa. But the people felt 
that many years of misfortune had been 
owing to the private enmities of four 
overbearing families. An opportunity 
soon off'ered of reducing their influence 
within very narrow bounds. 

The Ghibelin faction was at the head 
of afl^airs in 1339, a Doria and a Election of 
Spinola being its leaders, when the first 
the discontent of a large fleet in V°^^- 
want of pay broke out in open insurrec- 
tion. Savona and the neighbouring towns 
took arms avowedly against the aristo- 
cratical tyranny ; and the capital was it- 
self on the point of joining the insurgents. 
There was, by the Genoese constitution, 
a magistrate, named the abbot of the 
people, acting as a kind of tribune for 
their protection against the oppression 
of the nobility. His functions are not, 
however, in any book I have seen, very 
clearly defined. This office had been 
abolished by the present government, and 
it was the first demand of the malecon- 
tents that it shoidd be restored. This 
was acceded to, and twenty delegates 

* Sismondi, t. iii., p. 328. 
t Villani, 1. ix., passim. 



Pakt II.] 



ITALY. 



171 



were appointed to make the choice. 
"While they delayed and the populace was 
grown weary of waiting, a nameless ar- 
tisan called out from an elevated station 
that he could direct them to a fit person. 
"When the people, in jest, bade him speak 
on, he uttered the name of Simon Boc- 
canegra. This was a man of noble birth, 
and well esteemed, who was then present 
among the crowd. The word was sud- 
denly taken up ; a cry was heard that 
Boccanegra should be abbot ; he was in- 
stantly brought forward, and the sword 
of justice forced into his hand. As soon 
as silence could be obtained, he modestly 
thanked them for their favour, but decli- 
ned an office which his nobility disquali- 
fied him from exercising. At this, a sin- 
gle voice out of the crowd exclaimed 
Stgiiior! and this title was reverberated 
from every side. Fearful of worse con- 
sequences, the actual magistrates urged 
him to comply with the people, and ac- 
cept the office of abbot. But Boccanegra, 
addressing the assembly, declared his 
readiness to become their abbot, signior, 
or whatever they would. The cry of sig- 
nior was now louder than before ; while 
others cried out let him be duke. The 
latter title was received with greater ap- 
probation ; and Boccanegra was conduct- 
ed to the palace, the first duke, or doge 
of Genoa.* 

Caprice alone, or an idea of more pomp 
Subsequent and dignity, led the populace, 
revolutions, we may conjecture, to prefer 
this title to that of signior; but it produ- 
ced important and highly beneficial con- 
sequences. In all neighbouring cities, an 
arbitrary government had been already 
established under their respective signi- 
ors ; the name was associated with indef- 
inite power : while that of doge had only 
been taken by the elective and very lim- 
ited chief magistrate of another maritime 
republic. Neither Boccanegra nor his 
successors ever rendered their authority 
unlimited or hereditary. The constitu- 
tion of Genoa, from an oppressive aris- 
tocracy, became a mixture of the two 
other forms, with an exclusion of the 
nobles from power. Those four great 
families who had domineered alternately 
for almost a century, lost their iniluence 
at home after the revolution of 1339. 
Yet, what is remarkable enough, they 
were still selected in preference for the 
highest of trusts ; their names are still 
identified with the glory of Genoa ; her 
fleets hardly sailed but under a Doria, a 
Spinola, or a Grimaldi ; such confidence 



* G. Stella, Annal. Genuenses, in Script. Rer. 
lUl., t. xvii., p. 1072 



could the repuWic bestow upon their pa- 
triotism, or that of those whom they com- 
manded. Meanwhile two or three new 
families, a plebeian oligarchy; filled their 
place in domestic honours ; the Adorni, 
the Fregosi, the Montalti, contended for 
the ascendant. From their competition 
ensued revolutions too numerous almost 
for a separate history ; in four years, from 
1390 to 1394, the doge was ten times chan- 
ged ; swept away or brought back in the 
fluctuations of popular tumult. Antoni- 
otto Adorno, four times doge of Genoa, 
had sought the friendship of Gian Galeaz- 
zo Visconti ; but that crafty tyrant medi- 
tated the subjugation of the republic, and 
played her factions against one another to 
render her fall secure. Adorno perceiv- 
ed that there was no hope for ultimate in- 
dependence, but by making a temporary 
sacrifice of it. His own power, ambi- 
tious as he had been, he voluntarily re- 
signed ; and placed the republic under the 
protection or signiory of the King of 
France. Terms were stipulated very 
favourable to her liberties ; but with a 
French garrison once received into the 
city, they were not always sure of ob- 
servance. * 

"While Genoa lost even herpohtical in 
dependence, Venice became more . 
conspicuous and powerful than be- 
fore. That famous republic deduces its 
original, and even its liberty, from an era 
beyond the commencement of the middle 
ages. The "Venetians boast of a perpet- 
ual emancipation from the yoke of bar- 
barians. From that ignominious servi- 
tude some natives, or, as their historians 
will have it, nobles of Aquileja and 
neighbouring towns,! fled to the small 
cluster of islands that rise amid the 
shoals at the mouth of the Brenta. Here 
they built the town of Rivoalto, the mod- 
ern Venice, in 421 ; but their chief settle- 
ment was, till the beginning of the ninth 
century, at Malamocco. A living writer 
has, in a passage of remarkable eloquence, 
described the sovereign republic, immove- 
able upon the bosom of the waters, from 
which her palaces emerge, contemplating 
the successive tides of continental inva- 
sion, the rise and fall of empires, the 
diange of dynasties, the whole moving 
scene of human revolution; till, in her 
own turn, the last surviving witness of 
antiquity, the common link between two 
periods of civilization, she has submitted 
to the destroying hand of time. J Some 

* Sismondi, t. vii., p. 237, 367. 
t Ebbe principio, says Sanuto haughtily, non da 
pastori, come ebbe Roma, ma da potenU, e njbili. 
t Sismondi, t. i., p. 309. 



172 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



part of this renown must, on a cold- 
blooded scrutiny, be detracted from Ven- 
ice. Her independence was, at the best, 
the fruit of her obscurity. Neglected 
Her depend- "P<^^ ^lieir islands, a people of 

anceonthe fishermen might without mo- 
Greek em- lestation elect their own magis- 
^"^' trates ; a very equivocal proof 

of sovereignty in cities much more con- 
siderable than Venice. But both the 
western and the eastern empire alter- 
nately pretended to exercise dominion 
over her ; she was conquered by Pepin, 
son of Charlemagne, and restored by him, 
as the Chronicles say, to the Greek em- 
peror Nicephorus. There is every ap- 
pearance that the Venetians had always 
considei'ed themselves as subject, in a 
large sense, not exclusive of their muni- 
cipal self-government, to the eastern em- 
pire.* And this connexion was not bro- 
ken, in the early part, at least, of the 
tenth century. But, for every essential 
purpose, Venice might long before be 
deemed an independent state. Her doge 
was not confirmed at Constantinople ; 
she paid no tribute, and lent no assistance 
in war. Her own navies, in the ninth 
century, encountered the Norm.ans, the 
Saracens, and the Sclavonians in the 
Adriatic Sea. Upon the coast of Dalma- 
tia were several Greek cities, which the 
empire had ceased to protect ; and which, 
like Venice itself, became republics for 
want of a master. Ragusa was one of 
these, and, more fortunate than the rest. 
Conquest of Survived as an independent city 
Daimatia. till our own age. [A. D. 997.] 
In return for the assistance of Venice, 
these little seaports put themselves under 
her government ; the Sclavonian pirates 
were repressed ; and after acquiring, 
partly by consent, partly by arms, a large 
tract of maritime territory, the doge took 



* Nicephorus stipulates with Charlemagne for 
his faithful city of Venice, Quae in devotione impe- 
rii illibatffi steterant.— Danduli Chronicon, in Mu- 
ratori, Script. Rer. Ital, t. xii., p. 156. In the 
tenth century, Constantine Porphyrogenitus, in his 
book De Administratione Imperii, claims the Ve- 
netians as his subjects, though he admits that they 
had, for peace' sake, paid tribute to Pepin and his 
successors as kings of Italy, p. 71. I have never 
seen the famous Squittinio della liberta Veneta, 
which gave the republic so much offence in the 
seventeenth century ; but a very strong case is 
made out against their early independence in Gi- 
annone's history, t. ii., p. 283, edit. Haia, 1753. 
Muratori informs us, that so late as 1084, the doge 
obtained the title of Imperialis Protosevastos from 
the court of Constantniople ; a title which he con- 
tinued always to use.— (Annali d'ltalia, ad ann.) 
But I should lay no stress on this circumstance. 
The Greek, like the German emperors in modern 
times, had a mint of specious titles, which passed 
for ready money over Christendom. 



the title of Duke of Daimatia, which is said 
by Dandolo to have been confirmed at 
Constantinople. Three or four centu- 
ries, however, elapsed, before the repub- 
lic became secure of these conquests, 
which were frequently wrested from her 
by rebellions of the inhabitants, or by 
her powerful neighbour, the King of Hun- 
gary. 

A more important source of Venetian 
greatness was commerce. In Heracqui- 
the darkest and nfost barbarous sitions in 
period, before Genoa or even ""^ Levant. 
Pisa had entered into mercantile pursuits, 
Venice carried on an extensive traffic 
both with the Greek and Saracen regions 
of the Levant. The crusades enriched 
and aggrandized Venice more, perhaps, 
than any other city. Her splendour 
may, however, be dated from the taking 
of Constantinople by the Latins in 1204. 
In this famous enterprise, which diverted 
a great armament destined for the recov- 
ery of Jerusalem, the French and Vene- 
tian nations were alone engaged ; but 
the former only as private adventurers, 
the latter with the whole strength of 
their republic imder its doge, Henry 
Dandolo. Three eighths of the city of 
Constantinople, and an equal proportion 
of the provinces, were allotted to them 
in the partition of the spoil, and the doge 
took the singular, but accurate title, duke 
of three eighths of the Roman empire. 
Their share was increased by purchases 
from less opulent crusaders, especially 
one of much importance, the Island of 
Candia, which they retained till the mid- 
dle of the seventeenth century. These 
foreign acquisitions were generally grant- 
ed out in fief to private Venetian nobles 
under the supremacy of the republic* 
It was thus that the Ionian islands, to 
adopt the vocabulary of our day, came 
under the dominion of Venice, and guar- 
antied that sovereignty which she now 
began to affect over the Adriatic. Those 
of the Archipelago were lost in the six- 
teenth century. This political greatness 
was sustained by an increasing com- 
merce. No Christian state preserved so 
considerable an intercourse with the 
Mahometans. While Genoa kept the 
keys of the Black Sea by her colonies of 
Pera and Caffa, Venice directed her ves- 
sels to Acre and Alexandria. These 
connexions, as is the natural effect of 
trade, deadened the sense of religious an- 
tipathy ; and the Venetians were some- 
times charged with obstructing all eflbrts 
towards a new crusade, or even any par- 

* Sismondi, t. ii., p. 431. 



Part II.] 



ITALY 



173 



tial attacks upon the Mahometan na- 
tions. 

The earliest form of government at 
Venetian Venice, as we collect from an 
government, epistle of Cassiodorus in the 
sixth century, was by twelve annual trib- 
unes. Perhaps the union of the differ- 
ent islanders was merely federative. 
However, in 697, they resolved to elect 
a chief magistrate by name of duke, or, 
in their dialect, Doge of Venice. No 
councils appear to have hmited his pow- 
er, or represented the national will. The 
doge was general and judge ; he was 
sometimes permitted to associate his son 
with him, and tjjus to prepare the road 
for hereditary power ; his government 
had all the prerogatives, and, as far as in 
such a state of manners was possible, 
the pomp of a monarchy. But he acted 
in important matters with the concur- 
rence of a general assembly, though from 
the want of positive restraints, his exec- 
utive government might be considered as 
nearly absolute. Time, however, de- 
monstrated to the Venetians the imper- 
fections of such a constitution. Limita- 
tions were accordingly imposed on the 
doge in 1032 ; he was prohibited from as- 
sociating a son in the government, and 
obliged to act with the consent of two 
elected counsellors, and, on important 
occasions, to call in some of the principal 
citizens. No other change appears to 
have taken place till 1172; long after 
every other Italian city had provided for 
its liberty by constitutional laws, more 
or less successful, but always manifest- 
ing a good deal of contrivance and com- 
plication. Venice was, however, dissat- 
isfied with her existing institutions. Gen- 
eral assejiiblies were found, in practice, 
inconvenient and unsatisfactory. Yet 
some adequate safeguard against a ma- 
gistrate of indefinite powers was requi- 
red by freemen. A representative coun- 
cil, as in other republics, justly appeared 
the best innovation that could be intro- 
duced.* 

The great council of Venice, as estab- 
lished in 1172, was to consist of four 
hundred and eighty citizens, equally 
taken from the six districts of the city, 
and annually renewed. But the election 



* Sismondi, t. iii., p. 287. As I have never met 
with the Storia civile Veneta, by Vettor Sandi, in 
nine vols. 4to, or even Laugier's History of Venice, 
my reliance has chiefly been placed on M. Sismondi, 
who has made use of Sandi, the latest and probably 
most accurate historian. To avoid frequent refer- 
ence, the principal passages in Sismondi relative 
to the domestic revolutions of Venice are, t. i,, p. 
323 ; t. iii., p. 287-300; t. iv., p. 349-370. 



was not made immediately by the people. 
Two electors, called tribunes, from each of 
the six districts, appointed the members 
of the council by separate nomination. 
These tribunes, at first, were themselves 
chosen by the people ; so that the inter- 
vention of this electoral body did not ap- 
parently trespass upon the democratical 
character of the constitution. But the 
great council, principally composed of 
men of high birth, and invested by the 
law with the appointment of the doge and 
of all the councils of magistracy, seem, 
early in the thirteenth century, to have 
assumed the right of naming their own 
constituents. Besides appointing the 
tribunes, they took upon themselves an- 
other privilege ; that of confirming or re- 
jecting their successors before they re- 
signed their functions. These usurpa- 
tions rendered the annual election almost 
nugatory; the same members were usu- 
ally renewed, and, though the dignity of 
counsellor was not yet hereditary, it re- 
mained, upon the whole, in the same fam- 
ilies. In this transitional state the Vene- 
tian government continued during the 
thirteenth century ; the people actually 
debarred of power, but an hereditary 
aristocracy not completely or legally 
confirmed. The right of electing, or 
rather of re-electing, the great council, 
was transferred in 1297 from the tribunes, 
whose office was abolished, to the coun- 
cil of forty ; they balloted upon the names 
of the members who already sat ; and 
whoever obtained twelve favouring balls 
gut of forty retained his place. The va- 
cancies occasioned by rejection or death 
were filled up by a supplemental list, 
formed by three electors nominated in 
the great council. But they were ex- 
pressly prohibited, by laws of 1298 and 
1300, from inserting the name of any one 
whose paternal ancestors had not enjoy- 
ed the same honour. Thus an exclusive 
hereditary aristocracy was finally estab- 
lished. And the personal rights of noble 
descent were rendered complete in 1319, 
by the abolition of all elective forms. By 
the constitution of Venice, as it was then 
settled, every descendant of a member of 
the great council, on attaining twenty- 
five years of age, entered as of right into 
that body, which of course became un- 
limited in its numbers.* 



* These gradual changes between 1297 and 1319 
were first made known by Sandi, from whom M. 
Sismondi has introduced tfie facts into his own his- 
tory. I notice this because all former writers, both 
ancient and modern, fix the complete and final es- 
tablishment of the Venetian aristocracy in 1297. 

Twenty-five years complete was the statutable 



174 



EUROPE DURING THE MIDDLE AGES. 



[Chap. III. 



But an assembly so numerous as the 
great council, even before it was thus 
thrown open to all the nobility, could 
never have conducted the public affairs 
with that secrecy and steadiness which 
were characteristic of Venice ; and with- 
out an intermediary power between the 
doge and the patrician multitude, the con- 
stitution would have gained nothing in 
stability to compensate for the loss of 
popular freedom. The great council had 
proceeded, very soon after its institution, 
to limit the ducal prerogatives. That 
of exercising criminal justice, a trust of 
vast importance, was transferred, in 1179, 
to a council of forty members, annually 
chosen. The executive government it- 
self was thought too considerable for the 
doge without some material limitations. 
Instead of naming his own assistants or 
pregadi, he was only to preside in a coun- 
cil of sixty members, to whom the care 
of the state in all domestic and foreign 
relations, and the previous deliberation 
upon proposals submitted to the great 
council, was confided. This council of 
pregadi, generally called in later times 
the senate, was enlarged in the fourteenth 
century by sixty additional members; 
and as a great part of the magistrates had 
also seats in it, the whole number amount- 
ed to between two and three hundred. 
Though the legislative power, properly 
speaking, remained with the great coun- 
cil, the senate used to impose taxes, and 
had the exclusive right of making peace 
and war. It was annually renewed, like 
almost all other councils at Venice, by 
the great council. But since even this 
body was too numerous for the prelimi- 
nary discussion of business, six counsel- 
lors, forming, along with the doge, the 
signiory, or visible representative of the 
republic, were empowered to despatch 
orders, to correspond with ambassadors, 
to treat with foreign states, to convoke 
and preside in the councils, and perform 
other duties of an administration. In 
part of these they were obliged to act 
with the concurrence of what was term- 
ed the college, comprising, besides them- 
selves, certain select counsellors from 
different constituted authorities.* 

age, at which every Venetian noble had a right to 
take his seat in the great council. But the names 
of those who had passed the age of twenty were 
annually put into an urn, and one fifth drawn out 
by lot, who were thereuponadmitted. On an aver- 
age, therefore, the age of admission was about 
twenty-three. — Jannotus de Rep. Venet. Contare- 
ni. Amelot de la Houssaye. 

* The college of Savj consisted of sixteen per- 
sons ; and it possessed the initiative in all public 
measures that required the assent of the senate. 



It might be imagined that a dignity 
so shorn of its lustre as that of doge, 
would not excite an overweening ambi- 
tion. But the Venetians were still jeal- 
ous of extinguished power; and while 
their constitution was yet immature, the 
great council planned new methods of 
restricting their chief magistrate. An 
oath was taken by the doge on his elec- 
tion, so comprehensive as to embrace ev- 
ery possible check upon undue influence. 
He was bound not to correspond with 
foreign states, or to open their letters, 
except in the presence of the signiory ; 
to acquire no property beyond the Vene- 
tian dominions, and to resign v/hat he 
might already possess ♦to interpose, di- 
rectly or indirectly, in no judicial process, 
and not to permit any citizen to use to- 
kens of subjection in saluting him. As a 
further security, they devised a remark- 
ably complicated mode of supplying the 
vacancy of his office. Election by open 
suffrage is always liable to tumult or cor- 
ruption ; nor does the method of secret 
ballot, while it prevents the one, afford 
in practice any adequate security against 
the other. Election by lot incurs the 
risk of placing incapable persons in situ- 
ations of arduous trust. The Venetian 
scheme was intended to combine the two 
modes without their evils, by leaving the 
absolute choice of their doge to electors 
taken by lot. It was presumed that, 
among a competent number of persons, 
though taken promiscuously, good sense 
and right principles would gain such an 
ascendency as to prevent any flagrantly 
improper nomination, if undue influence 
could be excluded. For this purpose, 
the ballot was rendered exceedingly com- 
plicated, that no possible ingenuity or 
stratagem might ascertain the* electoral 
body before the last moment. A single 
lottery, if fairly conducted, is certainly 
sufficient for this end. At Venice, as 
many balls as there Avere members of 
the great council present were placed in 
an urn. Thirty of these were gilt. The 
holders of gilt balls were reduced by a 
second ballot to nine. The nine elected 
forty, whom lot reduced to twelve. The 
twelve chose twenty-five by separate nom- 
ination.* The twenty-five were reduced 
by lot to nine ; and each of the nine chose 



For no single senator, much less any noble of the 
great council, could propose any thing for debate. 
The signiory had the same privilege. Thus the 
virtual powers, even of the senate, were far more 
limited than they appear at first sight; and no pos- 
sibility remained of innovation in the fundamental 
principles of the constitution. 

* Amelot de la Houssaye asserts this : but, ac- 
cording to Contareni, the method was by ballot. 



Part II.] 



ITALY. 



175 



five. These forty-five were reduced to 
eleven, as before ; the eleven elected for- 
ty-one, who were the ultimate voters for 
a doge. This intricacy appears useless, 
and consequently absurd; but the origi- 
nal principle of a Venetian election (for 
something of the same kind was applied 
to all their councils and magistrates) may 
not always be unworthy of imitation. In 
one of our best modern statutes, that for 
regulating the trials of contested elections, 
we have seen this mixture of chance and 
selection very happily introduced. 

An hereditary prince could never have 
remained quiet in such trammels as were 
imposed upon the Doge of Venice. But 
early prejudice accustoms men to con- 
sider restraint, even upon themselves, as 
advantageous ; and the limitations of du- 
cal power appeared to every Venetian as 
fundamental as the great laws of the 
English constitution do to ourselves. 
Many doges of Venice, especially in the 
middle ages, were considerable men ; but 
they were content with the functions as- 
signed to them, which, if they could avoid 
the tantalizing comparison of sovereign 
princes, were enough for the ambition of 
republicans. For life the chief magis- 
trates of their country, her noble citizens 
for ever, they might thank her in their 
own name for what she gave, and in that 
of their posterity for what she withheld. 
Once only a doge of Venice was tempted 
to betray the freedom of the republic. 
[A. D. 1355.] Marin Falieri, a man far ad- 
vanced in life, engaged, from some petty 
resentment, in a wild intrigue to overturn 
the government. The conspiracy was 
soon discovered, and the doge avowed his 
guilt. An aristocracy so firm and so se- 
vere did not hesitate to order his execu- 
tion in the ducal palace. 

For some years after what was called 
the closing of the great council of the 
law of 1296, which excluded all but the 
families actually in possession, a good 
deal of discontent showed itself among 
the commonalty. Several commotions 
took place about the beginning of the 
fourteenth century, with the object of 
restoring a more popular regimen. Upon 
the suppression of the last, in 1310, the 
aristocracy sacrificed their own individual 
freedom along with that of the people, 
to the preservation of an imaginary priv- 
ilege. They established the famous coun- 
cil of ten, that most remarkable part of 
the Venetian constitution. This council, 
it should be observed, consisted in fact 
of seventeen ; comprising the signiory, or 
the doge and his six counsellors, as well 
as the ten properly so called. The coun- 



cil of ten had by usage, if not by right, a 
controlling and dictatorial power over the 
senate, and other magistrates ; rescinding 
their decisions, and treating separately 
with foreign princes. Their vast influ- 
ence strengthened the executive govern- 
ment, of which they formed a part, and 
gave a vigour to its movements, which 
the jealousy of the councils would possi- 
bly have impeded. But they are chiefly 
known as an arbitrary and inquisitorial 
tribunal, the standing tyranny of Venice. 
Excluding the old council of forty, a reg- 
ular court of criminal judicature, not only 
from the investigation of treasonable 
charges, but of several other crimes of 
magnitude, they inquired, they judged, 
they punished, according to wtyit they 
called reason of state. The public eye 
never penetrated the mystery of their 
proceedings ; the accused was sometimes 
not heard, never confronted with witnes- 
ses ; the condemnation was secret as the 
inquiry, the punishment undivulged like 
both.* The terrible and odious machinery 
of a police, the insidious spy, the sti- 
pendiary informer, imknown to the care- 
lessness of feudal governments, found 
their natural soil in the republic of Venice. 
Tumultuous assemblies were scarcely 
possible in so peculiar a city ; and pri- 
vate conspiracies never failed to be de- 
tected by the vigilance of the council of 
ten. Compared with the Tuscan repub- 
lics, the tranquillity of Venice is truly 
striking. The names of Guelf and Ghib- 
elin hardly raised any emotion in lier 
streets, though the government was con- 
sidered in the first part of the fourteenth 
century as rather inclined towards the 
latter party. f But the wildest excesses 
of faction are less dishonouring than the 
stillness and moral degradation of servi- 
tude. J 



* Ilium etiam morem observant, ne reum, cum 
de eo judicium laturi sunt, in collegium admittant, 
neque cognitorem, aut oratorem quempiam, qui 
ejus causam agat.— Contareni de Rep. Venet. 

t Villani several times speaks of the Venetians 
as regular Ghibelins, 1. ix., c. 2 ; 1. x., c. 89, &c. 
But this is put much too strongly: though their 
government may have had a slight bias towards that 
faction, they were in reality neutral, and far enough 
removed from any domestic feuds upon that score. 

t By the modern law of Venice, a nobleman 
could not engage in trade without derogating from 
his rank ; but I am not aware whether so absurd a 
restriction existed in the fourteenth and fifteenth 
centuries. I do not find this peculiarly observed 
by .Jannotti and Contareni, the oldest writers on 
the Venetian government. It is noticed by Amelot 
de la Houssaye, who tells us also, tliat the nobility 
evaded the law by secret partnership with the priv- 
ileged merchants, or cittadini, who formed a sep- 
arate class at Venice. This was the custom in 
modern times. But I have never understood the 



176 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill, 



It was a very common theme with 
political writers, till about the beginning 
of the last century, when Venice fell al- 
most into oblivion, to descant upon the 
wisdom of this government. And indeed, 
if the preservation of ancient institutions 
be, as some appear to consider it, not a 
means, but an end, and an end for which 
tlie rights of man and laws of God may 
at any time be set aside, we must ac- 
knowledge that it was a wisely con- 
structed system. Formed to com.press 
the two opposite forces from which re- 
sistance might be expected, it kept both 
the doge and the people in perfect sub- 
ordination. Even the coalition of an ex- 
ecutive magistrate with the multitude, so 
fatal to most aristocracies, never endan- 
gered thatipf Venice. It is most remark- 
able, that a part of the constitution which 
destroyed every man's security, and in- 
curred general hatred, was still maintain- 
ed by a sense of its necessity. The 
council of ten, annually renewed, might 
annually have been annihilated. The 
great council had only to withhold their 
suffrages from the new candidates, and 
the tyranny expired of itself. This was 
several times attempted (I speak now 
of more modern ages) ; but the nobles, 
though detesting the council of ten, never 
steadily persevered in refusing to re-elect 
it. It was, in fact, become essential to 
Venice. So great were the vices of her 
constitution, that she could not endure 
their remedies. If the council of ten had 
been abolished at any time since the fif- 
teenth century, if the removal of that 
jealous despotism had given scope to the 
corruption of a poor and debased aristoc- 
racy, to the license of a people unworthy 
of freedom, the republic would have soon 
lost her territorial possessions, if not her 
own independence. If indeed it be true, 
as reported, that during the last hundred 
years this formidable tribunal had sensi- 
bly relaxed its vigilance, if the Venetian 
government had become less tyrannical 
through sloth, or decline of national 
spirit, our conjecture will have acquired 
the confirmation of experience. Expe- 
rience has recently shown that a worse 
calamity than domestic tyranny might 
befall the queen of the Adriatic. In the 
place of St. Mark, among the monuments 
of extinguished greatness, a traveller may 



principle or common sense of such a restriction, 
especially combined with that other fundamental 
law, which disqualified a Venetian nobleman from 
possessing a landed estate on the terra firma of the 
republic. The latter, however, did not extend, as I 
have been informed, to Dalmatia or the Ionian 
islands. 



regret to think that an insolent German 
soldiery has replaced even the senators of 
Venice. Her ancient liberty, her bright 
and romantic career of glory in countries 
so dear to the imagination, her magnani- 
mous defence in the war of Chioggia, a 
few thinly-scattered names of illustrious 
men, will rise upon his mind, and mingle 
with his indignation at the treachery 
which robbed her of her independence. 
But if he has learned the true attributes 
of wisdom in civil policy, he will not 
easily prostitute that word to a constitu- 
tion formed without reference to property 
or to population, that vested sovereign 
power partly in a body of empoverished 
nobles, partly in an overruling despotism ; 
or to a practical system of government 
that made vice the ally of tyranny, and 
sought impunity for its own assassina- 
tions by encouraging dissoluteness of 
private life. Perhaps, too, the wisdom 
so often imputed to the senate in its for- 
eign policy has been greatly exagger- 
ated. The balance of power established 
in Europe, and, above all, in Italy, main- 
tained for the two last centuries states 
of small intrinsic resources, without any 
efforts of their own. In the ultimate 
crisis, at least, of Venetian liberty, that 
solemn mockery of statesmanship was 
exhibited to contempt ; too blind to avert 
danger, too cowardly to withstand it, the 
most ancient government of Europe made 
not an instant's resistance ; the peasants 
of Underwald died upon their mountains ; 
the nobles of Venice clung only to their 
lives.* 

Until almost the middle of the four- 



* See in the Edinburgh Review, vol. xii., p. 379, 
an account of a book, which is perhaps little 
known, though interesting to the history of our 
own age : a collection of documents illustrating 
the fall of the republic of Venice, The article is 
well written, and, I presume, contains a faithful 
account of the work ; the author of which, Sig- 
nor Barzoni, is respected as a patriotic writer in 
Italy. 

Every one who has been at Venice must have 
been struck with the magnificent tombs of the 
doges, most of them in the church of S. Giovanni 
e Paolo, in which the republic seems to identify 
herself with her chief magistrate, and to make the 
decorations and inscriptions on his monument a 
record of her own wealth and glory. In the church 
of the Scalzi, on a single square stone in the pave- 
ment, a very different epitaph from that of Lore- 
dano or Foscari may be read, Manini Cineres. 
These two words mark the place of interment of 
Manini, the last doge, whose own pusillanimity, or 
that of those around him, joined to the calamity of 
tlie times, caused him to survive his own dignity 
and the liberties of Venice. To my feelings this 
inscription was more striking than the famous 
Locus Marini Falicri, pro criinmibus decapitati, upon 
a vacant canvass among the pictures of the dogea 
in the hall of the Great Council. 



Part II.] 



ITALY. 



177 



Territorial teeiith ceiitury, Venice had been 
acquisitions content without any territorial 
of Venice, possessions in Italy ; unless we 
reckon a very narrow strip of seacoast, 
bordering on her lagunes, called the Do- 
gato. Neutral in the great contests be- 
tween the church and the empire, be- 
tween the free cities and their sovereigns, 
she was respected by both parties, while 
neither ventured to claim her as an ally. 
But the rapid progress of Mastino delia 
Scala, lord of Verona, with some partic- 
ular injuries, led the senate to form a 
league with Florence against him. Vil- 
lani mentions it as a singular honour for 
his country to have become the confed- 
erate of the Venetians, " who, for their 
great excellence and power, had never 
allied themselves with any state or prince, 
except at their ancient conquest of Con- 
stantinople and Romania."* The result 
of this combination was to annex the dis- 
trict of Treviso to the Venetian domin- 
ions. But they made no further conquests 
in that age. On the contrary, they lost 
Treviso in the unfortunate war of Chiog- 
gia, and did not regain it till 1389. Nor 
did they seriously attempt to withstand 
the progress of Gian Galeazzo Visconti ; 
who, after overthrowing the family of 
Scala, stretched almost to the Adriatic, 
and altogether subverted for a time the 
balance of power in Lombardy. 

But upon the death of this prince in 
_. , ., 1404, a remarkable crisis took 

state of Lorn- , • , , tt i ,• 

bardy at the place ni that country. He left 
beginning of two sons, Giovanni Maria and 
century.'" Filippo Maria, both young, and 
under the care of a mother 
who was little fitted for her situation. 
Through her misconduct, and the selfish 
ambition of some military leaders, who 
had commanded Gian Galeazzo's merce- 
naries, that extensive dominion was soon 
broken into fragments. Bergamo, Como, 
Lodi, Cremona, and other cities revolt- 
ed, submitting themselves in general to 
the families of their former princes, the 
earlier race of usurpers, who had for 
nearly a century been crushed by the 
Visconti. A Guelf faction revived, after 
the name had long been proscribed in 
Lombardy. Francesco de Carrara, lord 
of Padua, availed himself of this revolu- 
tion to get possession of Verona, and 
seemed likely to unite all the cities be- 
yond the Adige. No family was so odi- 
ous to the Venetians as that of Carrara. 
Though they had seemed indifferent to 
the more real danger in Gian Galeazzo's 
lifetime, they took up arms against this 



M 



* L. xi., c. 49 



inferior enemy. Both Padua and Verona 
were reduced, and the Duke of Milan ce- 
ding Vicenza, the repubhc of Venice came 
suddenly into the possession of an exten- 
sive territory. Francesco de Carrara, 
who had surrendered in his capital, was 
put to death in prison at A^enice ; a cruel- 
ty perfectly characteristic of that govern- 
ment, and which would hardly have been 
avowedly perpetrated, even in the fif- 
teenth century, by any other state in Eu- 
rope. 

Notwithstanding the deranged condi- 
tion of the Milanese, no further attempts 
were made by the senate of Venice for 
twenty years. They had not yet acqui- 
red that decided love of war and con- 
quest, which soon began to influence 
them against all the rules of their ancient 
policy. There were still left some wary 
statesmen of the old school to check am- 
bitious designs. Sanuto has preserved 
an interesting account of the wealth and 
commerce of Venice in those days. This 
is thrown into the mouth of the Doge 
Mocenigo, whom he represents as dis- 
suading his country, with his dying words, 
from undertaking a war against Milan. 
" Through peace our city has every year," 
he said, " ten millions of ducats employ- 
ed as mercantile capital in different parts 
of the world ; the annual profit of our tra- 
ders upon this sum amounts to four mill- 
ions. Our housing is valued at 7,000,000 
ducats ; its annual rental at 500,000 
Three thousand merchant ships carry on 
our trade ; forty-three galleys, and three 
hundred smaller vessels, manned by 
19,000 sailors, secure our naval power. 
Our mint has coined 1,000,000 ducats with- 
in the year. From the Milanese dominions 
alone we draw 1,000,000 ducats in coin, 
and the value of 900,000 more in cloths ; 
our profit upon this traffic may be reckon- 
ed at 600,000 ducats. Proceeding as you 
have done to acquire this wealth, you will 
become masters of all the gold in Chris- 
tendom; but war, and especially unjust 
war, will lead infallibly to ruin. Already 
you have spent 900,000 ducats in the ac- 
quisition of Verona and Padua ; yet the 
expense of protecting these places ab- 
sorbs all the revenue which they yield. 
You have many among you, men of prob- 
ity and experience ; choose one of these 
to succeed me ; but beware of Francesco 
Foscari. If he is doge, you will soon 
have war, and war will bring poverty and 
loss of honour."* Mocenigo died, and 

* Sanuto, Vite di Duchi di Venezia, in Script. 
Rer. ItaL, t. xxii., p. 958. Mocenigo's harangue is 
very long in Sanuto : I have endeavoured to pre- 
serve the substance. 



178 



EUROPE DURING THE MIDDLE AGES. 



[CilAP. III. 



Foscari became doge : the prophecies of 
the former were neglected ; and it cannot 
wlioUy be afla-med that they were fulfill- 
ed. Yet Venice is described by a writer 
thirty years later, as somewhat impaired 
in opulence by her long warfare with the 
duk<>s of Milan. 

The latter had recovered a great part 
Wars of of their dominions as rapidly as 
Milan and they had lost them. Giovanni 
Venice. Maria, the elder brother, a mon- 
ster of guilt even among the Visconti, 
having been assassinated, Filippo Maria 
assumed the government of Milan and 
I'avia, almost his only possessions. Ihit, 
though weak and unwarlike himself, he 
had the good fortune to employ Carmag- 
nola, one of the greatest generals of that 
military age. Most of the revolted cities 
were tired of their new masters, and their 
nclinations conspiring with Carmagno- 
la's eminent talents and activity, the 
house of Visconti reassumcd its former 
ascendency from the Sessia to the Adige. 
Its fortum^s might have been still more 
prosperous, if Filippo Maria had not 
rashly, as well as ungratefully, oflendcd 
Carmagnola. That great captain retired 
to Venice, and intlamed a disposition to- 
Avards war which the Florentines and 
the Duke of Savoy had already excited. 
The Venetians had previously gained 
some important advantages in another 
quarter, by reducing the country of Fri- 
uli, with part of Istria, which had for 
many centuries depended on the tempo- 
ral authority of a neighbouring prelate, 
the patriarcli of Acpiilcia. They entered 
into this new alliance. No undertaking 
of the republic had been more successful. 
Carmagnola led on their armies, and in 
about two years [A. I). 1120] Venice 
actpiircd Brescia and Bergamo, and ex- 
tended her boundary to the river Adda, 
which she was destined never to pass. 

Such conquests could oidy be made, 
ChaiiKoin l^Y * <^ity SO peculiarly mari- 
tiie mUiiary time as Venice, through the 
system. j^^jp ^^ mercenary troops. But 
in employing them she merely con- 
formed to a fashion, which states to 
whom it was less indispensable had long 
since established. A great revolution 
liad taken place in the system of milita- 
ry service through most parts of Europe, 
but especially in Italy. During the 
twelfth and tliirteenth centuries, wheth- 
er the Italian c-ities were engaged in 
their contest witli the emperors, or in 
less arduous and general hostilities among 
each other, they seem to have poured 
out almost their whole population, as an 
armed and loosely organized militia. A 



single city, with its adjacent district, 
sonietinu's brouglit twenty or thirty thou- 
sand men into the field. Every man, 
according to the trade he practised, or 
quarter of the city wherein he dwelt, 
kn(!W his own banner, and the captain he 
was to obey.* In battle, the carroccio 
formed one common rallying-point, the 
pivot of every movement. This was a 
chariot, or rather wagon, painted with 
vermilion, and bearing the city standard 
elevated upon it. That of Milan re(iuired 
four pair of oxen to drag it forward. f 
To defend this sacred emblem of his 
country, which Muratori compares to the 
ark of the covenant among the Jews, 
was the constant object, that, giving a 
sort of concentration and uniformity to 
the army, supplied in some degree the 
want of more regular tactics. This mi- 
litia was of course principally composed 
of infantry. At the famous battle of the 
Arbi, in 1200, the Guelf Florentines had 
thirty thousand foot and three thousand 
horse ;J and the usual proportion was 
five, six, or ten, to one. Gentlemen, 
however, were always mounted ; and 
the superiority of a heavy cavalry must 
have been [)r()digiously great over an un- 
disciplined and ill-armed populace. In 
the thirteenth and following centuries, 
armies seem to have been considered as 
formidable, nearly in ])roportion to the 
number of men-at-arms, or lancers. A 
charge of cavalry was irresistible ; bat- 
tles were continually won by inferior 
numbers, and vast slaughter was made 
among the fugitives.^ 

As the comparative inefficiency of foot- 
soldiers became evident, a greater pro- 
portion of cavalry was emj)loyed, and 
armies, though better equipped and dis- 
cii)lined, were less numerous. This we 
(intl in the early part of the fourteenth 
century. Tlie main point for a state at 
war was to obtain a sullicicnt Employment 
lorce of men-at-arms. As few of foreign 
Italian cities could muster a '"""oi's. 
large body of cavalry from their own 
population, the obvious resource was 



* Muratori, Antiq. Ital., Diss, 26. Denina, 
Rivolu/.ioiii d'ltalia, 1. xii., c. 4. 

t The carroccit) was inVpnted by Eribert, a cel- 
ebrated arclibishoji ot Milan, about 1039. — Annali 
di Murat., Aiitici, ital., Diss. 2C. The carroccio of 
Milan was taken by Frederick II., in 1237, and 
sent to Rome. Parma and Cremona lost their 
carroccios to each other, and exchanged them 
some years afterward with great exultation. In 
the fourteenth century this custom had gone into 
disuse. — Id. ibid. Denina, 1. xii., C. 4. 

% Villain, 1. vi., c. 79. 

(Ji Sisinondi, t. iii., p. 263, &c., has some judi 
cious observations on this subject. 



Part II] 



ITALY. 



179 



to hire mercenary troops. This had 
been practised in some instances much 
earlier. The city of Genoa took the 
Count of Savoy into pay with two hun- 
dred horse in 1225.* Florence retained 
five hundred French hinces in 1282. f 
But it became much more general in the 
fourteenth century, chiefly after tlie ex- 
pedition of the Emperor Henry VII., in 
1310. Many German soldiers of fortune, 
remaining in Italy upon this occasion, 
engaged in the service of Milan, Flor- 
ence, or some other state. The subse- 
quent expeditions of Louis of Bavaria in 
1326, and of John, king of Bohemia, in 
1331, brought a fresh accession of adven- 
turers from the same country. Others 
again came from France, and some from 
Hungary. All preferred to continue in 
the richest country and finest climate of 
Europe, where their services were anx- 
iously solicited and abundantly repaid. 
An unfortunate prejudice in favour of 
strangers prevailed among the Italians of 
that age. They ceded to them, one 
knows not why, certainly without having 
been vanquished, the palm of military 
skill and valour. The word Transalpine 
(Oltramontani) is frequently applit^d to 
liirfKl cavalry by the two Villani, as an 
epithet of excellence. 

The experience of every fresh cam- 
paign now told more and more against 
the ordinary militia. It has been usual 
for modern writers to lament the degen- 
eracy of martial spirit among the Italians 
of that age. But the contest was too un- 
equal between an absolutely invulnerable 
body of cuirassiers, and an infantry of 
peasants or citizens. The bravest men 
have little appetite for receiving wounds 
and death without the hope of inflicting 
any in return. The parochial militia of 
France had proved equally unserviceable ; 
though, as the life of a French peasant 
was of much less account in the eyes of 
his government than that of an Italian cit- 
izen, they were still led forward like sheep 
to the slaughter, against the disciplined 
forces of Edward III. The cavalry had 

* Muratori, Dissert. 26. 

t Ammiralo, Istoria Fiorent., p. 150; the same 
■was (lone in 1279, p. 200. A la7ic(:, in the technical 
languafje of those ages, included the liijhtcr caval- 
ry attaclied to the man-at-armg, as well as himself. 
In France, the full complement of a lance (lance 
fournie) was live or six horses; thus the 1500 
lances, who composed the original companies of 
ordonnance raised by Charles Vll., anujunted to 
nine thousand cavalry. But in Italy, the number 
was smaller. We road frequently of barhuti, 
which are defined, lanze de due cavalli.— Corio, p. 
437. Lances of three horses were introduced 
about the middle of the fourteenth century. — Id., 
p. 466. 

M2 



about this time laid aside the hauberk, or 
coat of mail, their ancient distinction 
from the unprotected populace ; which, 
though incapable of being cut through by 
the sabre, afforded no defence against the 
pointed sword introduced in the thirteenth 
century,* nor repelled the impulse of a 
lance, or the crushing blow of a battle- 
axe. Plate armour was substituted in its 
place ; and the man-at-arms, cased in en- 
lire steel, the several pieces firmly rivet- 
ed, and proof against every stroke, his 
charger protected on the face, chest, and 
shoidders, or, as it was called, barded 
with plates of steel, fought with a secu- 
rity of success against enemies infe- 
rior perhaps only in these adventitious 
sources of courage to himself.f 

Nor was the new system of conduct- 
ing hostilities less inconvenient citizens ex- 
to the citizens than the tactics cuscd from 
of a battle. Instead of rapid and ^''''"'"'• 
predatory invasions, terminated instantly 
by a single action, and not extending 
more than a few days' march from the 
soldier's home, the more skilful combina- 
tions usual in the fourteenth century fre- 
quently protracted an indecisive contest 
for a whole summer.^ As wealth and 
civilization made evident the advantages 
of agricultural and mercantile industry, 
this loss of productive labour could no 
longer be endured. Azzo Visconli, who 
died in 1.339, dispensed withtlie personal 
service of his Milanese subjects. "An- 
other of his laws," says Galvaneo Fiam- 
ma, " was, that the people should not go 
to war, but remain at home for their own 
business. For they had hitherto been 
kept with much danger and expense ev- 
ery year, and especially in time of har- 
vest and vintage, when princes are wont 
to go to war, in besieging cities, and in- 
curred numberless losses, and chiefly on 
account of the long time that they were 
so detained."!^ This law of Azzo Vis- 
conli, taken separately, might be ascribed 
to the usual policy of an absolute govern- 



* Muratori, ad ann. 1226. 

t The earliest plate armour, engraved in Montfau 
con's Monumens de la Monarchic Fran(;aise, t. ii., 
is of the reign of Philip the Long, about HIS ; but 
it docs not appear generally till that of Philip of 
Valois, or even later. Before the coniplele harness 
of steel was adopted, plated caps were sometimes 
worn on the knees and elbows, and even greaves 
on the legs. This is represented in a statue of 
Charles I., king of Naples, who died in 1285. Pos- 
sibly the statue may not be quite so ancient. — 
Montfiincon, passim. Daniel, Hist, de la Milice 
Frani'oise, p. 305. 

t This tedious warfare a la Fabius is called by 
Villani guerra guereggiata, I. viii., c. 49 ; at least 
I can annex no other meaning to the expression. 

^ Muratori, Antiquit. Ital., Dissert. 26. 



180 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill, 



ment. But we find a similar innovation 
not long afterward at Florence. In the 
war carried on by that republic against 
Giovanni Visconti, in 1351, the younger 
Villani informs us that " the useless and 
mischievous personal service of the in- 
habitants of the district was commuted 
into a money payment."* This change 
indeed was necessarily accompanied by 
a vast increase of taxation. The Italian 
states, republics as well as principalities, 
levied very heavy contributions. Masti- 
no della Scala had a revenue of 700,000 
florins ; more, says John Villani, than the 
lung of any European country, except 
France, possesses.} Yet this arose from 
only nine cities of Lombardy. Consid- 
ered with reference to economy, almost 
any taxes must be a cheap commutation 
for personal service. But economy may 
be regarded too exclusively, and can nev- 
er counterbalance that degradation of a 
national character which proceeds from 
intrusting the public defence to foreign- 
ers. 

It could hardly be expected that sti- 
Companiea pendiary troops, chiefly compo- 
ofadven- sed of Germans, would conduct 
'"'''^' themselves without insolence 

and contempt of the effeminacy which 
courted their services. Indifferent to the 
cause they supported, the highest pay 
and the richest plunder were their con- 
stant motives. As Italy was generally 
the theatre of war in some of her numer- 
ous states, a soldier of fortune, with his 
lance and charger for his inheritance, 
passed from one service to another with- 
out regret and without discredit. But if 
peace happened to be pretty universal, he 
might be thrown out of his only occupa- 
tion, and reduced to a very inferior con- 
dition in a country of which he was not 
a native. It naturally occurred to men 
of their feelings, that if money and hon- 
our could only be had while they retain- 
ed their arms, it was their own fault if 
they ever relinquished them. Upon this 
principle they first acted in 1343, when 
the republic of Pisa disbanded a large 
body of German cavalry which had been 
employed in a war with Florence. J A 



♦ Matt. Villani, p. 135. 

i L. xi., c. 45. I cannot imagine why M. Sis- 
mondi asserts, t. iv., p. 432, that the lords of cities 
in Lombardy did not venture to augment the taxes 
imposed while they had been free. Complaints 
of heavy taxation are certainly often made against 
the Visconti and other tyrants in the fourteenth 
century. 

X Sismondi, t. v., p. 380. The dangerous aspect 
which these German mercenaries might assume, 
had appeared four years before, when Lodrisio, one 
of the Viisconti, having quarrelled with the Lord of 



partisan, whom the Italians call the Duke 
Guarnieri, engaged these dissatisfied mer- 
cenaries to remain united under his com- 
mand. His plan was to levy contribu- 
tions on all countries which he entered 
with his company, without aiming at any 
conquests. No Itahan army, he well 
knew, could be raised to oppose him ; 
and he trusted that other mercenaries 
would not be ready to fight against men 
who had devised a scheme so advantage- 
ous to the profession. This was the first 
of the companies of adventure, which 
continued for many years to be the 
scourge and disgrace of Italy. Guarnie- 
ri, after some time, withdrew his troops, 
saturated with plunder, into Germany ; 
but he served in the invasion of Naples 
by Louis, king of Hungary, in 1348, and, 
forming a new company, ravaged the ec- 
clesiastical state. A still more formida- 
ble band of disciplined robbers appeared 
in 1353, under the command of Fra Mo- 
ri ale, and afterward of Conrad Lando. 
This was denominated the Great Com- 
pany, and consisted of several thousand 
regular troops, besides a multitude of 
half-armed ruffians, who assisted as spies, 
pioneers, and plunderers. The rich cit- 
ies of Tuscany and Romagna paid large 
sums, that the great company, which was 
perpetually in motion, might not march 
through their territory. Florence alone 
magnanimously resolved not to offer this 
ignominious tribute. Upon two occa- 
sions, once in 1358, and still more con- 
spicuously the next year, she refused 
either to give a passage to the company 
or to redeem licrself by money ; and in 
each instance the German robbers were 
compelled to retire. At this time they 
consisted of five thousand cuirassiers, and 
their whole body was not less than twen- 
ty thousand men ; a terrible proof of the 
evils which an erroneous system had en- 
tailed upon Italy. Nor were they re- 
pulsed on this occasion by the actual ex- 
ertions of Florence. The courage of 
that republic was in her councils, not in 
her arms ; the resistance made to Lan- 
do's demand was a burst of national feel- 
ing, and rather against the advice of the 
leading Florentines ;* but the army em- 
ployed was entirely composed of merce- 
nary troops, and probably, for the greater 
part, of foreigners. 



Milan, led a large body of troops who had just been 
disbanded against the city. After some desperate 
battles, the mercenaries were defeated, and Lodri- 
sio taken, t. v., p. 278. In this instance, however, 
they acted for another ; Guarnieri was the first whn 
taught them to preserve themipartiality of general 
robbers. 
* Matt. Villani, p. 537. 



Part II.] 



ITALY. 



181 



None of the foreign partisans, who en- 
Sir John tered into the service of Italian 
Hawkwood. states, acquired such renown in 
that career as an Englishman, whom con- 
temporary writers call Aucud or Agu- 
tus, but to whom we may restore his 
national appellation of Sir John Hawk- 
wood. This very eminent man had serv- 
ed in the war of Edward III., and obtain- 
ed his knighthood from that sovereign, 
though originally, if we may trust com- 
mon fame, bred to the trade of a tailor. 
After the peace of Bretigni, France was 
ravaged by the disbanded troops, whose 
devastations Edward was accused, per- 
haps unjustly, of secretly instigating. A 
large body of these, under the name of 
the White Company, passed into the 
service of the Marquis of Montferrat. 
They were some time afterward em- 
ployed by the Pisans against Florence ;. 
and, during this latter war, Hawkwood 
appears as their commander. For thir- 
ty years he was continually engaged 
in the service of the Visconti, of the 
pope, or of the Florentines, to whom he 
devoted himself for the latter part of his 
life, with more fidelity and steadiness 
than he had shown in his first campaigns. 
The republic testified her gratitude by 
a public funeral, and by a monument, 
which, I believe, is still extant. 

The name of Sir John Hawkwood is 
Want of mil- worthy to be remembered, as 
itary science that of the first distinguished 
time'^'' ^'* commander who had appear- 
ed in Europe since the de- 
struction of the Roman empire. It would 
be absurd to suppose that any of the con- 
stituent elements of nhhtary genius which 
nature furnishes to energetic characters 
were wanting to the leaders of a barbari- 
an or feudal army ; untroubled perspica- 
city in confusion, firm decision, rapid ex- 
ecution, providence against attack, fertil- 
ity of resource, and stratagem. These 
are in quality as much required from the 
chief of an Indian tribe as from the ac- 
comphshed commander. But we do not 
find them in any instance so consumma- 
ted by habitual skill as to challenge the 
name of generalship. No one at least 
occurs to me previously to the middle of 
the fourteenth century, to whom history 
has unequivocally assigned that character. 
It is very rarely that we find even the order 
of battle specially noticed. The monks, 
indeed, our only chroniclers, were poor 
judges of martial exceUence ; yet, as war 
is the main topic of all annals, we could 
hardly remain ignorant of any distin- 
guished skill in its operations. This 
neglect of miUtary science certainly did 



not proceed from any predilection for the 
arts of peace. It arose out of the gener- 
al manners of society, and out of the na- 
ture and composition of armies in the 
middle ages. The insubordinate spirit of 
feudal tenants, and the emulous equality 
of chivalry, were ahke hostile to that gra- 
dation of rank, that punctual observance 
of irksome duties, that piumpt obedience 
to a supreme command, through which a 
single soul is infused into the active mass, 
and the rays of individual merit converge 
to the head of the general. 

In the fourteenth century we begin to 
perceive something of a more scientific 
character in military proceedings, and 
historians for the first time discover that 
success does not entirely depend upon 
intrepidity and physical ".rowess. The 
victory of Muhldorf over the Austrian 
princes, in 1322, that decided a civil war 
in the empire, is ascribed to the ability 
of the Bavarian commander.* Many dis- 
tinguished oflicers were formed in the 
school of Edward III. Yet their excel- 
lences were perhaps rather those of ac- 
tive partisans than of experienced gener- 
als. Their successes are still due rather 
to daring enthusiasm than to wary and 
calculating combination. Like inexpert 
chess-players, they surprise us by happy 
sallies against rule, or display their tal- 
ents in rescuing themselves from the 
consequence of their own mistakes. 
Thus the admirable arrangements of the 
Black Prince at Poitiers hardly redeem 
the temerity which placed him in a situ- 
ation where the egregious folly of his 
adversary alone could have permitted 
him to triumph. Hawkwood therefore 
appears to me the first real general of 
modern times ; the earliest master, how- 
ever imperfect, in the science of Turenne 
and Wellington. Every contemporary 
Itahan historian speaks with admiration 
of his skilful tactics in battle, his strata- 
gems, his well-conducted retreats. Praise 
of this description, as I have observed, is 
hardly bestowed, certainly not so contin • 
ually, on any former captain. 

Hawkwood was not only the greatest, 
but the last of the foreign con- gchooiof 
dottieri,or captains of mercena- Italian gen 
ry bands. While he was yet *"'^- 
living, a new military school had been 
formed in Italy, which not only superse- 
ded, but eclipsed all the strangers. This 
important reform was ascribed to Alberic 
di Barbiano, lord of some petty territories 

* Stniviu«, Corpus Historiae German., p. 585 
Schwepperman, the Bavarian general, is called 
by a contemporary writer, clarus inilitari scientJd 
vir. 



182 



EUROPE DURING THE MIDDLE AGES 



[Chap. III. 



near Bologna. He formed a company 
altogether of Italians about the year 1379. 
It is not to be supposed that natives of 
Italy had before been absolutely excluded 
from service. We find several Italians, 
such as the Malatesta family, lords of 
Rimini, and the Rossi of Parma, com- 
manding the armies of Florence much 
earlier. But this was the first trading 
company, if I may borrow the analogy, 
the first regular body of Italian mercena- 
ries, attached only to their commander, 
without any consideration of party, like 
the Germans and English of Lando and 
Hawkwood. Alberic di Barbiano, though 
himself no doubt a man of military tal- 
ents, is principally distinguished by the 
school of great generals which the com- 
pany of St. George under his command 
produced, and which may be deduced, by 
regular succession, to the sixteenth cen- 
tury. The first in order of time, and 
immediate contemporaries of Barbiano, 
were Jacopo Verme, Facino Cane, and 
Ottobon Terzo. Among an intelligent 
and educated people, little inclined to 
servile imitation, the military art made 
great progress. The most eminent con- 
dottieri being divided, in general, between 
beUigerants, each of them had his genius 
excited and kept in tension by that of a 
rival in glory. Every resource of science 
as well as experience, every improve- 
ment in tactical arrangements and the 
use of arms, was required to obtain an 
advantage over such equal enemies. In 
the first year of the fifteenth century, the 
Italians brought their newly-acquired su- 
periority to a test. The Emperor Rob- 
ert, in alliance with Florence, invaded 
Gian Galeazzo's dominions with a con- 
siderable army. From old reputation, 
which so frequently survives the intrinsic 
qualities upon which it was founded, 
an impression appears to have been ex- 
cited in Italy that the native troops were 
still unequal to meet the charge of Ger- 
man cuirassiers. The Duke of Milan 
gave orders to his general, Jacopo Verme, 
to avoid a combat. But that able leader 
was aware of a great relative change in 
the two armies. The Germans had neg- 
lected to improve their discipline; their 
arms were less easily wielded, their 
horses less obedient to the bit. A single 
skirmish was enough to open their eyes ; 
they found themselves decidedly inferior; 
and, having engaged in the war with the 
expectation of easy success, were readily 
disheartened.* This victory, or rather 
this decisive proof that victory might be 



achieved, set Italy at rest for almost a 
century from any apprehensions on the 
side of her ancient masters. 

Whatever evils might be derived, and 
they were not trifling, from the employ- 
ment of foreign or native mercenaries, it 
was impossible to discontinue the system 
without general consent; and too many 
states found their own advantage in it 
for such an agreement. The condottieri 
were indeed all notorious for contempt of 
engagements. Their rapacity was equal 
to their bad faith. Besides an enormous 
pay, for every private cuirassier received 
much more in value than a subaltern of- 
ficer at present, they exacted gratifica- 
tions for every success.* But every thing 
was endured by ambitious governments 
who wanted their aid. Florence and 
Venice were the two states which owed 
most to the companies of adventure. The 
one loved war without its perils ; the 
other could never have obtained an inch 
of territory with a population of sailors. 
But they were both almost inexhaustibly 
rich by commercial industry ; and, as the 
surest paymasters, were best served by 
those they employed. The Visconti might 
perhaps have extended their conquest 
over Lombardy with the militia of Milan ; 
but without a Jacopo del Verme or a Car- 
magnola, the banner of St. Mark would 
never have floated at Verona and Ber- 
gamo. 

The Italian armies of the fifteenth cen- 
tury have been remarked for one Defensive 
striking peculiarity. War has arms of 
never been conducted at so little '^^' *?^- 
personal hazard to the soldier. Combats 
frequently occur in the aimals of that age, 
wherein success, though warmly con- 
tested, cost very few lives even to the 
vanquished.! This innocence of blood, 



* Sismondi, t. vii., p. 439. 



* Paga doppia, e mese compiuto, of which we 
frequently read, sometimes granted improvidently, 
and more often demanded unreasonably. The first 
speaks for itself; the second was the reckoning a 
month's service as completed when it was begun, 
in calculating their pay. — Matt. Villani, p. 62. Sis- 
mondi, t. v., p. 412. 

Gian Galeazzo Visconti promised constant half- 
pay to the condottieri whom he disbanded m 1396. 
This perhaps is the first instance of half-pay. — Sis- 
mondi, t. vii., p. 397. 

t Instances of this are very frequent. Thus, at 
the action of Zagonara, in 1423, but three persons, 
accordmg to Machiavel, lost their lives, and those 
by suffocation in the mud. — 1st. Fiorent., 1. iv. At 
that of Molinella, in 1467, he says that no one was 
killed, 1. vii. Animirato reproves him for this, as 
all the authors of the time represent it to have been 
sanguinary (t. li., p. 102), and insinuates that Ma- 
chiavel ridicules the inonensiveness of those annies 
more than it deserves, schernendo, come egli suol 
far, quella milizia. Certainly some few battles of 
the fifteenth century were not only obstinately con 



Part II.] 



ITALY. 



183 



which some historians turn into ridicule, 
was no doubt owing in a great degree to 
the rapacity of the companies of adven- 
ture, who, in expectation of enriching 
themselves by the ransom of prisoners, 
were anxious to save their lives. Much 
of the humanity of modern warfare was 
originally due to this motive. But it was 
rendered more practicable by the nature 
of their arms. For once, and for once 
only in the history of mankind, the art of 
defence had outstripped that of destruc- 
tion. In a charge of lancers many fell, 
unhorsed by the shock, and might be suf- 
focated or bruised to death by the pres- 
sure of their own armour; but the lance's 
point could not penetrate the breastplate, 
the sword fell harmless upon the helmet, 
the conqueror, in the first impulse of pas- 
sion, could not assail any vital part of a 
prostrate but not exposed enemy. Still 
less was to be dreaded from the archers 
or crossbowmen, who composed a large 
part of the infantry. The bow, indeed, as 
drawn by an English foot-soldier, was the 
most formidable of arms before the in- 
vention of gunpowder. That ancient 
weapon, though not perhaps common 
among the Northern nations, nor for sev- 
eral centuries after their settlement, was 
occasionally in use before the crusades. 
William employed archers in the battle 
of Hastings.* Intercourse with the east, 
its natural soil, during the twelfth and 
thirteenth ages, rendered the bow better 
known. But the Europeans improved on 
the eastern method of confining its use 
to cavalry. By employing infantry as 
archers, they gained increased size, more 
steady position, and surer aim for the 
bow. Much, however, depended on the 
strength and skill of the archer. It was 
a peculiarly English weapon, and none 



tested, but attended with considerable loss.— Sis- 
mondi. t. x., p. 126, 137. But, in general, the 
slaughter must appear very trifling. Ammirato 
himself says, that in an action between the Neapol- 
itan and papal troops in 1486, which lasted all day, 
not only no one was killed, but it is not recorded 
that any one was wounded. — Roscoe's Lorenzo de' 
Medici, vol. ii., p. 37. Guicciardini's general testi- 
mony to the character of these combats is unequiv- 
ocal. He speaks of the battle of Fornova, between 
the confederates of Lombardy and the army of 
Charles VIII. returning from Naples in 1495, as 
very remarkable on account of the slaughter, which 
amounted on the Italian side to 3000 men : perche 
fa la prima, che da lunghissimo tempo in qua si 
combattesse con uccisione e con sangue in Italia, 
perche mnanzi a questa morivano pochissimi uomi- 
ni in un fatto d'arme, 1. ii., p. 175. 

* Pedites in fronte locavit, sagittis armatos et 
balistis, item pedites in ordine secuudo firmiores 
et loricatos, ultimo turmas equitum.— Gul. Pictavi- 
ensis (in Du Chesne), p. 201. Several archers are 
represented in the tapestry of Bayeux. 



of the other principal nations adopted it 
so generally or so successfully. The 
crossbow, which brought the strong and 
weak to a level, was more in favour upon 
the continent. This instrument is said 
by some writers to have been introduced 
after the first crusade, in the reign of 
Louis the Fat.* But, if we may trust 
William of Poitou, it was employed, as 
well as the long bow, at the battle of 
Hastings. Several of the popes prohib- 
ited it as a treacherous w^eapon ; and the 
restriction was so far regarded that, in 
the time of Philip Augustus, its use is 
said to have been unknown in France.f 
By degrees it became more general; and 
crossbowmen were considered as a very 
necessary part of a well-organized army. 
But both the arrow and the quarrel glan- 
ced away from plate-armour, such as it 
became in the fifteenth century, imper- 
vious in every point, except when the 
visor was raised from the face, or some 
part of the body accidentally exposed. 
The horse indeed was less completely 
protected. 

Many disadvantages attended the secu- 
rity against wounds for which this ar- 
mour had been devised. The enormous 
weight exhausted the force and crippled 
the limbs. It rendered the heat of a 
southern climate insupportable. In some 
circumstances it increased the danger of 
death, as in the passage of a river or 
morass. It was impossible to compel an 
enemy to fight, because the least in- 
trenchment or natural obstacle could stop 
such unwieldy assailants. The troops 
might be kept in constant alarm at night, 
and either compelled to sleep under arms, 
or run the risk of being surprised before 
they could rivet their plates of steel. | 
Neither the Italians, however, nor the 
Transalpines, would surrender a mode 
of defence which they ought to have 
deemed inglorious. But, in order to ob- 
viate some of its military inconveniences, 
as well as to give a concentration in at- 
tack, which lancers impetuously charging 
in a single hne, according to the practice 
at least of France in the middle ages, 
did not preserve, it became usual custom of 
for the cavalry to dismount, and cavalry dis- 
leaving their horses at some dis- "'""" '"°' 
tance, to combat on foot witli the lance;, 
This practice, which must have been 
singularly embarrassing with the plate- 
armour of the fifteenth century, was in- 
troduced before it became so ponderous. 



* Le Grand, Vie privee des Frangais, t. i., p. 349. 
t Du Cange, v. Balista. Muratori, Diss. 26, t. 
:., p. 462. (Ital.) 
t Sismondi, t. ix., p. 158. 



184 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill 



It is mentioned by historians of the 
twelfth century both as a German and 
an Enghsh custom.* We find it in the 
wars of Edward III. Hawkwood, the 
disciple of that school, introduced it into 
Italy. t And it was practised by the Eng- 
lish in their second wars with France, 
especially at the battles of Crevant and 
Verneuil.| 

Meanwhile, a discovery accidentally 
made, perhaps in some remote age and 
distant region, and whose importance 
was but slowly perceived by Europe, 
had prepared the way not only for a 
change in her military system, but for 
Invention of political effects still more ex- 
gunpowder. tensivc. If we consider gun- 
powder as an instrument of human de- 
struction, incalculably more powerful 
than any that skill had devised or acci- 
dent presented before, acquiring, as ex- 
perience shows us, a more sanguinary 
dominion in every succeeding age, and 
borrowing all the progressive resources 
of science and civilization for the exter- 
mination of mankind, we shall be appall- 
ed at the future prospects of the species, 
and feel perhaps in no other instance so 
much difficulty in reconciling the myste- 
rious dispensation with the benevolent 
order of Providence. As the great se- 
curity for established governments, the 
surest preservation against popular tu- 
mult, it assumes a more equivocal char- 
acter, depending upon the solution of 
a doubtful problem, whether the sum 
of general happiness has lost more in 
the last three centuries through arbi- 
trary power, than it has gained through 
regular police and suppression of dis- 
order. 

There seems little reason to doubt that 
gunpowder was introduced through the 
means of the Saracens into Europe. Its 
use in engines of war, though they may 
seem to have been rather like our fire- 
works than artillery, is mentioned by an 
Arabic writer in the Escurial collection 

* The Emperor Conrad's cavalry in the second 
crusade are said by William of Tyre to have dis- 
mounted on one occasion, and fought on foot, de 
equis descendentes, et facti pedites ; sicut 7ms est 
Teutonicis in summis necessitatibus bellica tractare 
negotia, 1. xvii , c. 4. And the same was done by 
^e English in their engagement with the Scotch 
near North AUerton, commonly called the battle of 
the Standard, in 1138. — Twysden, Decern Script., 
p. 342. 

t Sismondi, t. vi., p. 429. Azarius, in Script. 
Rer. kal., t. xvi. Matt. Villani. 

t Monstrelet, t. ii., fol. 7, 14, 76. Villaret, t. 
xvii., p. 89. It was a Burgundian as well as Eng- 
lish fashion. Entre les Bourguignons, says Co- 
mines, lors estoient les plus honorez ceux que 
desceiidoient avec les archers, 1. i., c. 3. 



about the year 1249.* It was known not 
long afterward to our philosopher, Roger 
Bacon, though he concealed in some de- 
gree the secret of its composition. In 
the first part of the fourteenth century, 
cannon, or rather mortars, were invented, 
and the applicability of gunpowder to 
purposes of war was understood. Ed- 
ward III. employed some pieces of artil- 
lery with considerable effect at Crecy.f 
But its use was still not very frequent ; 
a circumstance which will surprise us 
less, when we consider the unscientific 
construction of artillery ; the slowness 
with which it could be loaded ; its stone 
balls of uncertain aim and imperfect 
force, being commonly fired at a consid- 
erable elevation ; and especially the diffi- 
culty of removing it from place to placei 
during an action. In sieges, and in naval 
engagements, as for example in the war 
of Chioggia, it was more frequently em- 
ployed. f Gradually, however, the new 



* Casiri, Bibl. Arab. Hispan., t. ii., p. 7, thus 
renders the original description of certain missiles 
used by the Moors. Serpunt, susurrantque scorpi- 
ones circumligati ac pulvere nitrato incensi, unde 
explosi fulgurant ac incendunt. Jam videre erat 
manganum excussum veluti nubem per aera ex- 
tendi ac tonitrus instar horrendum edere fragorem, 
ignemque undequaque vomens, omnia dirimipere, 
incendere, in cineres redigere. The Arabic pas- 
sage is at the bottom of the pige ; and one would 
be glad to know whether puhis nitratim is a fair 
translation. But I think there can on the whole be 
no doubt that gunpowder is meant. Another Ara- 
bian writer seems to describe the use of cannon in 
the years 1312 and 1323.— Id. ibid. And the chron- 
icle of Alphonso XI., king of Castile, distinctly 
mentions them at the siege of Algeziras in 1342. 
But, before this, they were sufficiently known in 
France. Gunpowder and cannon are both men- 
tioned in registers of accounts under 1338 (Du 
Cange, Bombarda), and in another document of 
1345. — Hist, du Languedoc, t. iv., p. 204. But the 
strongest evidence is a passage of Petrarch, writ- 
ten before 1344, and quoted in Muratori, Antich. 
Ital., Dissert. 26, p. 456, where lie speaks of the 
art, nuper rara, nunc communis. 

t G. Villani, 1. xii., c. 67. Gibbon has thrown 
out a sort of objection to the certainty of this fact, 
on account of Froissart's silence. But the posi- 
tive testimony of Villani, who died within two years 
afterward, and had manifestly obtained much in- 
formation as to the great events passing in France, 
cannot be rejected. He ascribes a material ctiect 
to the cannon of Edward, colpi delle bombarde, 
which I suspect, from his strong expressions, had 
not been employed before, except against stone 
walls. It seemed, he says, as if God t^lundered 
con grande uccisione di genti, e sfondamento di 
c avail i. 

X Gattaro, 1st. Padovana, in Script. Rer. Ital., t. 
xvii., p. 360. Several proofs of the employment 
of artillery in French sieges during the reign of 
Charles V. occur in Villaret. See the word Artil- 
lerie in the index. 

Gian Galeazzo had, according to Coria, thirty- 
four pieces of cannon, small and great, in the Mila- 
nese army, about 1397. 



Part II.] 



ITALY. 



185 



artifice of evil gained ground. The 
French made the principal improve- 
ments. They cast their cannon smaller, 
placed them on lighter carriages, and 
used balls of iron.* They invented port- 
able arms for a single soldier, which, 
though clumsy in comparison with their 
present state, gave an augury of a pro- 
digious revolution in the military art. 
John, duke of Burgundy, in 1411, had 
4000 hand-cannons, as they were called, 
in liis army.f They are found under 
different names, and modifications of 
form, for which I refer the reader to pro- 
fessed writers on tactics, in most of the 
wars that historians of the fifteenth cen- 
tury record, but less in Italy than beyond 
the Alps. The Milanese, in 1449, are 
said to have armed their militia with 
20,000 muskets, which struck terror into 
the old generals. I But these muskets, 
supported on a rest, and charged with 
great delay, did less execution than our 
sanguinary science would require ; and, 
uncombined with the admirable invention 
of the bayonet, could not in any degree 
resist a charge of cavalry. The pike had 
a greater tendency to subvert the military 
system of the middle ages, and to de- 
monstrate the efficiency of disciplined 
infantry. Two free nations had already 
discomfited, by the help of such infantry, 
those arrogant knights on whom the fate 
of battles had depended ; the Bohemians, 
instructed in the art of war by their great 
master, John Zisca ; and the Swiss, who, 
after winning their independence, inch by 
inch, from the house of Austria, had lately 
established their renown by a splendid 
victory over Charles of Burgundy. Louis 
XI. took a body of mercenaries from the 
United Cantons into pay. Maximilian had 
recourse to the same assistance.^ And 
though the importance of infantry was 
not perhaps decidedly established till the 
Milanese wars of Louis XII. and Francis 
I. in the sixteenth century, yet the last 
years of the middle ages, according to 



* Guicciardini, 1. i.,.p. 75, has a remarkable pas- 
sage on the superiority of the French over the Ital- 
ian artillery, in consequence of these improve- 
ments. 

t Villaret, t.xiii., p. 176, 310. 

i Sisraondi, t. ix., p. 341. He says that it re- 
quired a quarter of an hour to charge and fire a 
musket. I must confess that I very much doubt 
the fact of so many muskets having been collected. 
In 1432, that arm was seen for the first time in 
Tuscany. — Muratori, Dissert. 26, p. 457. 

() See Guicciardini's character of the Swiss 
troops, p. 192. The French, he says, had no native 
infantry ; il regno di Francia era debolissimo di 
fanteria propria, the nobility monopolizing all war- 
like occupationa— Ibid. 



our division, indicated the commence- 
ment of that military revolution in the 
general employment of pikemen and 
musketeers. 

8oon after the beginning of the fifteenth 
century, to return from this di- Rivalry of 
gression, two illustrious cap- sror7.a and 
tains, educated under Alberic di J^f^ccio. 
Barbiano, turned upon themselves the 
eyes of Italy. These were Braccio di 
Montone, a noble Perugian, and Sforza 
Attendolo, originally a peasant in the vil- 
lage of Cotignuola. Nearly equal in rep- 
utation, unless perhaps Braccio may be 
reckoned the more consummate general, 
they were divided by a long rivalry, 
which descended to the next generation, 
and involved all the distinguished leaders 
of Italy. The distractions of Naples, and 
the anarchy of the ecclesiasticaWstate, 
gave scope not only to their military, but 
political ambition. Sforza was invested 
with extensive fiefs in the kingdom of 
Naples, and with the office of Great Con- 
stable. Braccio aimed at independent 
acquisitions, and formed a sort of princi- 
pality around Perugia. This, however, 
was entirely dissipated at his death. 
When Sforza and Braccio were no more, 
their respective parties were headed by 
the son of the former, Francesco Francesco 
Sforza, and by Nicolas Piccini- siorza. 
no, who for more than twenty years 
fought, with few exceptions, under oppo- 
site banners. Piccinino Avas constantly 
in the service of Milan. Sforza, whose 
pohtical talents fully equalled his milita- 
ry skill, never lost sight of the splendid 
prospects that opened to his ambition. 
From Eugenius IV. he obtained the 
March of Ancona, as a fief of the Roman 
see. Thus rendered more independent 
than the ordinary condottieri, he mingled 
as a sovereign prince in the politics of It- 
aly. He was generally in alliance with 
Venice and Florence, throwing his weight 
into their scale to preserve the balance of 
power against Milan and Naples. But 
his ultimate designs rested upon Milan. 
Filippo Maria, duke of that city, the last 
of his family, had only a natural daugh- 
ter, whose hand he sometimes offered and 
sometimes withheld from Sforza. Even 
after he had consented to their union, his 
suspicious temper was incapable of ad- 
mitting such a son-in-law into neacmires 
confidence, and he joined in a tiieduiciiy 
confederacy with the pope and °'''^^'''^"- 
King of Naples to strip Sforza of the 
March. At the death of Filippo Maria, 
in 1447, that general had nothing left but 
his glory, and a very disputable claim to 
the Milanese succession. This, howev- 



186 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill, 



cr, was set aside by tlie citizens, who re- ' 
vived their repubhcan government. A 
republic in that part of Lombardy might, 
with the help of Venice and Florence, 
have withstood any domestic or foreign 
usurpation. But Venice was hostile, and 
Florence indifferent. Sforza became the 
general of this new state, aware that such 
would be the probable means of becom- 
ing its master. No politician of that age 
scrupled any breach of faith for his in- 
terest. Nothing, says Machiavel, was 
thought shameful but to fail. Sforza 
with his army deserted to the Venetians ; 
and the republic of Milan, being both in- 
capable of defending itself, and distracted 
by civil dissensions, soon fell a prey to 
his ambition. In 1450 he was proclaim- 
ed dul^ rather by right of election or of 
conquWt than in virtue of his marriage 
with Bianca, whose sex, as well as illegit- 
imacy, seemed to preclude her from in- 
heriting. 

I have not alluded for some time to the 
Affairs of domestic history of a kingdom, 
Naples, which bore a considerable part 
during the fourteenth and fifteenth centu- 
ries in the general combinations of Ital- 
ian policy, not wishing to interrupt the 
reader's attention by too frequent tran- 
sitions. We must return again to a more 
remote age in order to take up the histo- 
ry of Naples. [A. D. 1372.] Charles of 
Anjou, after the deaths of Manfred and 
Conradin had left him without a compet- 
itor, might be ranked in the first class of 
European sovereigns. Master of Pro- 
vence and Naples, and at the head of the 
Guelf faction in Italy, he had already 
prepared a formidable attack on the 
Greek empire, when a memorable revo- 
lution in Sicily brought humiliation on 
Rebellion of ^is latter years. John of Pro- 
Siciiy from cida, a Neapolitan, whose patri- 
Charies of mony had been confiscated for 
°''°"' his adherence to the party of 
Manfred, retained, during long years of 
exile, an implacable resentment against 
the house of Anjou. From the dominions 
of Peter III., king of Aragon, who had 
bestowed estates upon him in Valencia, he 
kept his eye continually fixed on Naples 
and Sicily. The former held out no fa- 
vourable prospects ; the Ghibelin party 
had been entirely subdued, and the prin- 
cipal barons were of French extraction 
or inclinations. But the island was in a 
very different state. Unused to any 
strong government, it was now treated as 
a conquered country. A large party of 
French soldiers garrisoned the fortified 
towns, and the systematic oppression 
was aggravated by those insults upon 



women, wliich have always been charac- 
teristic of that people, and are most in- 
tolerable to an Italian temperament. 
John of Procida, travelling in disguise 
through the island, animated the barons 
with a hope of deliverance. In like dis- 
guise he repaired to the pope, Nicolas 
III., who was jealous of the new Neapol- 
itan destiny, and obtained his sanction to 
the projected insurrection ; to the court 
of Constantinople, from which he readi- 
ly obtained money ; and to the King of 
Aragon, who employed that money in 
fitting out an armament, that hovered 
upon the coast of Africa, under pretext 
of attacking the Moors. It is, however, 
difficult at this time to distinguish the 
effects of preconcerted conspiracy from 
those of casual resentment. Before the 
intrigues so skilfully conducted had taken 
effect, yet after they were ripe for de- 
velopment, an outrage, committed upon 
a lady at Palermo during a procession on 
the vigil of Piaster, provoked the people 
to that terrible massacre of all the French 
in their island, which has obtained Sicilian 
the name of Sicilian Vespers. [A. Vespera 
D. 1283.] Unpremeditated as such an eb- 
ullition of popular fury must appear, it 
fell in, by the happiest coincidence, with 
the previous conspiracy. The King of 
Aragon's fleet was at hand ; the Sicilians 
soon called in his assistance ; he sailed 
to Palermo, and accepted the crown. 
John of Procida is a remarkable witness 
to a truth which the pride of governments 
will seldom permit them to acknowledge ; 
that an individual, obscure and apparent- 
ly insignificant, may sometimes, by per- 
severance and energy, shake the founda- 
tions of established states ; while the 
perfect concealment of his intrigues 
proves also, against a popular maxim, 
that a political secret may be preserved 
by a number of persons during a consid- 
erable length of time.* 



» Giannone, though he has well described the 
schemes of John of Procida, yet, as is too often his 
custom, or rather that of Costanzo, whom he im- 
phcitly follows, drops or slides over leading facts ; 
and thus, omitting entirely, or misrepresenting the 
circumstances of the Sicilian Vespers, treats the 
whole insurrection as the result of a deliberate con- 
spiracy. On the other hand, Nicolas Specialis, a 
contemporary writer, in the seventh volume of 
Muratori's collection, represents the Sicilian Ves- 
pers as proceeding entirely from the casual outrage 
in the streets of Paleimo. The thought of calling 
in Peter, he asserts, did not occur to the Sicilians 
till Charles had actually commenced the siege of 
Messina. But this is equally removed from the 
truth. Gibbon has made more errors than are usu- 
al with so accurate an historian in his account of 
this revolution, such as calling Constance, the 
queen of Peter, sister instead of daughter of Manfred. 



Part II.] 



ITALY. 



187 



The long war that ensued upon this rev- 
Warincon- ^^l^^^i^n involved or interested 
sequence the greater part of civilized Eu- 
Detween rope. Philip III. of France ad- 
Aragon.^"'^ hered to his uncle, and the King 
of Aragon was compelled to 
fight for Sicily within his native domin- 
ions. This indeed was the more vulnera- 
ble point of attack. Upon the sea he was 
lord of the ascendant. His Catalans, the 
most intrepid of Mediterranean sailors, 
were led to victory by a Calabrian refu- 
gee, Roger di Loria, the most illustrious 
and successful admiral whom Europe 
produced till the age of Blake and De 
Kuyter. In one of Loria's battles, the 
eldest son of the King of Naples was 
made prisoner, and the first years of his 
own reign were spent in confinement. 
But notwithstanding these advantages, it 
was found impracticable for Aragon to 
contend against the arms of France, and 
latterly of Castile, sustained by the roll- 
ing thunders of the Vatican. Peter III. 
had bequeathed Sicily to his second son 
James ; Alfonso, the eldest, king of Ara- 
gon, could not fairly be expected to ruin 
his inheritance for his brother's cause ; 
nor were the barons of that free country 
disposed to carry on a war without na- 
tional objects. He made peace accord- 
ingly in 1295, and engaged to withdraw 
all his subjects from the Sicilian service. 
Upon his own death, which followed very 
soon, James succeeded to the kingdom 
of Aragon, and ratified the renunciation 
of Sicily. But the natives of that island 
had received too deeply the spirit of in- 
dependence to be thus assigned over by 
the letter of a treaty. After solemnly 
abjuring, by their ambassadors, their alle- 
giance to the King of Aragon, they placed 
the crown upon the head of his brother 
Frederick. They maintained the war 
against Charles II. of Naples, against 
James of Aragon, their former king, who 
had bound himself to enforce their sub- 
mission, and even against the great Ro- 
ger di Loria, who, upon some discontent 
with Frederick, deserted their banner, 
and entered into the Neapolitan service. 
Peace was at length made in 1300, upon 
•condition that Frederick should retain du- 
ring his life the kingdom, which was af- 
terward to revert to the crown of Naples ; 
a condition not likely to be fulfilled. 

Upon the death of Charles II., king of 
Naples, in 1.305, a question arose as to 
the succession. His eldest son, Charles 
Martel, had been caUed by maternal inher- 
itance to the throne of Hungary, and had 

A good narrative of the Sicilian Vespers may be 
found in VelJy's History of France, t. vi. 



left at his decease a son, Carobert, the 
reigning sovereign of that country. Ac- 
cording to the laws of representative suc- 
cession, which were at this time tolerably 
settled in private inheritance, the crown 
of Naples ought to have regularly devolv- 
ed upon that prince. But it was contest- 
ed by his uncle Robert, the eld- Robert, king 
est hving son of Charles II., of Naples, 
and the cause was pleaded by civilians 
before Pope Clement V. at Avignon, the 
feudal superior of the Neapolitan king- 
dom. Reasons of pubhc utility, rather 
than of legal analogy, seem to have pre- 
vailed in the decision which was made in 
favour of Robert.* The course of his 
reign evinced the wisdom of this deter- 
mination. Robert, a wise and active, 
though not personally a martial prince, 
maintained the ascendency of the Guelf 
faction, and the papal influence connect-, 
ed with it, against the formidable combi- 
nation of Ghibelin usurpers in Lombardy, 
and the two emperors Henry VII. and 
Louis of Bavaria. No male issue survi- 
ved Robert, whose crown descended to 
his grand-daughter Joanna. She had 
been espoused, while a child, to her cou- 
sin Andrew, son of Carobert, king of 
Hungary, who was educated with her in 
the court of Naples. Auspiciously con- 
trived as this union might seem to silence 
a subsisting claim upon the kingdom, it 
proved eventually the source of civil war 
and calamity for a hundred and fifty years. 
Andrew's manners were barbarous, more 
worthy of his native country than of that 
polished court wherein he had been bred. 
He gave himself up to the society of Hun- 
garians, who taught him to believe that a 
matrimonial crown and derivative royalty 
were derogatory to a prince who claimed 
by a paramount hereditary right. [A. D. 
1343.] In fact, he was pressing the court 
of Avignon to permit his own corona- 
tion, which would have placed in a very 
hazardous condition the rights of the 
queen, with whom he was living on ill 
terms, when one night he was joa„na 
seized, strangled, and thrown Murder of 
out of a window. Public ru- ^"j'J"^''^"'' 
mour, in the absence of notori- 
ous proof, imputed the guilt of this mys- 
terious assassination to Joanna. W'heth- 
er historians are authorized to assume 
her participation in it so confidently as 
they have generally done, may perhaps 
be doubted ; though I cannot venture pos- 
itively to rescind their sentence. The 
circumstances of Andrew's death were 



* Giannone, 1. xxii. Summonte, t. ii., p. .370 
Some of the civilians of that age, however, appro 
ved the decision. 



188 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IIL 



undoubtedly pregnant with strong suspi- 
cion.* Louis, king of Hungary, his broth- 
er, a just and stern prince, invaded Na- 
ples, partly as an avenger, partly as a 
conqueror. Tlie queen, and her second 
husband, Louis of Tarento, fled to Pro- 
vence, where her acquittal, after a sol- 
emn, if not an impartial, investigation, 
was pronounced by Clement VL Louis 
meanwhile found it more difficult to re- 
tain than to acquire the kingdom of Na- 
ples; his own dominion required his 
presence ; and Joanna soon recovered 
her crown. She reigned for thirty years 
more without the attack of any enemy, 
but not intermeddling, like her progeni- 
tors, in the general concerns of Italy. 
Childless by four husbands, the succes- 
sion of Joanna began to excite ambitious 
speculations. Of all the male descend- 
ants of Charles L, none remained but the 
King of Hungary, and Charles, duke of 
Durazzo, who had married the queen's 
niece, and was regarded by her as the 
presumptive heir to the crown. But, of- 
fended by her marriage with Otho of 
Brunswick, he procured the assistance of 
an Hungarian army to invade the king- 
dom, and, getting the queen into his pow- 
er, took possession of the throne. In 
this enterprise he was seconded by Ur- 
ban VL, against whom Joanna had unfor- 
tunately declared in the great schism of 



* The Chronicle of Dominic di Gravina (Script. 
Rer. Ital., t. xii.) seems to be our best testimony 
for the circumstances connected with Andrew's 
death ; and, after reading his narrative more than 
once, I find myself undecided as to this perplexed 
and mysterious story. Gravina's opinion, it should 
be observed, is extremely hostile to the queen. 
Nevertheless, there are not wanting presumptions, 
that Charles, first duke of Durazzo, who had mar- 
ried his sister, was concerned in the murder of An- 
drew, for which in fact he was afterward put to 
death by the King of Hungary. But, if the Duke 
of Durazzo was guilty, it is unlikely that Joanna 
should be so too; because she was on very bad 
terms with him, and indeed the chief proofs against 
her are founded on the mvestigation which Duraz- 
zo himself professed to institute. Confessions ob- 
tained through torture are as little credible in his- 
tory as they ought to be in judicature; even if we 
could be positively sure, which is not the case in 
this instance, that such confessions were ever 
made. However, I do not pretend to acquit Joan- 
na, but merely to notice the uncertainty that rests 
over her story, on account of the positiveness with 
which all historians, except those of Naples and 
the Abbe de Sade, whose vindication (Vie de Pe- 
trarque, t. ii., notes) does her more harm than good, 
have assumed the murder of Andrew to have been 
her own act, as if she had ordered his execution in 
open day. 

Those who believe in the innocence of Mary, 
queen of Scots, may, besides the obvious resem- 
blance in their stories, which has been often no- 
ticed, find a more particular parallel between this 
Duke of Durazzo and the Earl of Murray. 



the church. She was smothered with a 
pillow, in prison, by the order of Charles. 
[A. D. 1378.] The name of Joan of Na- 
ples has suffered by the lax repetition of 
calumnies. Whatever share she may 
have had in her husband's death, and cer- 
tainly under circumstances of extenua- 
tion, her subsequent life was not open to 
any flagrant reproach. The charge of 
dissolute manners, so frequently made, 
is not warranted by any specific proof or 
contemporary testimony. 

In the extremity of Joanna's distress, 
she had sought assistance from a House of 
quarter too remote to afford it in Anjou. 
time for her relief. She adopted Louis, 
duke of Anjou, eldest uncle of the young 
king of France, Charles VI. , as her heir 
in the kingdom of Naples and county of 
Provence. This bequest took effect 
without difficulty in the latter country. 
Naples was entirely in the possession of 
Charles of Durazzo. Louis, however, 
entered Italy with a very large army, 
consisting at least of 30,000 cavalry, and, 
according to some writers, more than 
double that number.* He was joined by 
many Neapolitan barons attached to the 
late queen. But, by a fate not unusual in 
so imperfect a state of military science, 
this armament produced no adequate ef- 
fect, and mouldered away through dis- 
ease and want of provisions. Louis him- 
self dying not long afterward, the gov- 
ernment of Charles III. appeared secure, 
and he was tempted to accept an offer 
of the crown of Hungary. This enter- 
prise, equally unjust and injudicious, ter- 
minated in his assassination. Ladislaus, 
his son, a child ten years old, succeeded 
to the throne of Naples, under the guar- 
dianship of his mother IVIargaret ; whose 
exactions of money producing discontent, 
the party which had supported the late 
Duke of Anjou became powerful enough 
to call in his son. Louis II., as he was 
called, reigned at Naples, and possessed 
most part of the kingdom for several 
years ; the young king Ladislaus, who 
retained some of the northern provinces, 
fixing his residence at Gaeta. If Louis 
had prosecuted the war with activity, it 
seems probable that he would have sub- 
dued his adversary. But his character 
was not very energetic ; and Ladislaus, 
as he advanced to manhood, displaying 
much superior qualities, gained ground 
by degrees, till the Angevin barons, per- 
ceiving the turn of the tide, came over to 
his banner, and he recovered his whole 
dominions. 

* Muratori. Summonte. Costanzo 



Part II.] 



ITALY. 



189 



The kingdom of Naples, at the close 
of the fourteenth century, was 
Lad.siaus. ^^-jj altogether a feudal gov- 
ernment. This had been introduced by 
the first Norman Icings, and the system 
had rather been strengthened than im- 
paired under the Angevin hne. The 
princes of the blood, who were at one 
time numerous, obtained extensive do- 
mains by way of appanage. The prm- 
cipaUty of Tarento was a large portion 
of the kingdom.* The rest was occu- 
pied by some great families, whose 
strength, as well as pride, was shown in 
the number of men-at-arms whom they 
could muster under their banner. At the 
coronation of Louis II., in 1390, the San- 
severini appeared with 1800 cavalry com- 
pletely equipped.! This illustrious house, 
which had filled all the high offices of 
state, and changed kings at its pleasure, 
was crushed by Ladislaus, whose bold 
and unrelenting spirit well fitted him to 
bruise the heads of the aristocratic 
hydra. After thoroughly establishing 
his government at home, this ambitious 
monarch directed his powerful resources 
towards foreign conquests. The eccle- 
siastical territories had never been se- 
cure from rebellion or usurpation; but 
legitimate sovereigns had hitherto re- 
spected the patrimony of the head of the 
church. It was reserved for Ladislaus, 
a feudal vassal of the Holy See, to seize 
upon Rome itself as his spoil. For sev- 
eral years, while the disordered state of 
the church, in consequence of the schism 
and the means taken to extinguish it, 
gave him an opportunity, the King of 
Naples occupied great part of the papal 
territories. He was disposed to have 
carried his arms farther north, and at- 
tacked the republic of Florence, if not 
the states of Lombardy, when his death 
reheved Italy from the danger of this 
new tyranny. 

An elder sister, Joanna II., reigned 
,, at Naples after Ladislaus. Un- 

Joannall. , ^,- j i^-^ ^ c 

der this queen, destitute of cour- 
age and understanding, and the slave of 
appetites wiiich her age rendered doubly 
disgraceful, the kingdom relapsed into 
that state of anarchy from which its late 
sovereign had rescued it. I shall only 

* It comprehended the provinces now called 
Terra d'Otranto and Terra di Bari, besides part 
of those adjoining. — Summonte, Istoria di Napoli, 
t. iii., p. 537. Orsini, prince of Tarento, who died 
in 1463, had 4000 troops in arms, and the value of 
1,000,000 florins in moveables. — Sisraondi, t. x., 
p. 151. ♦ 

t Summonte, t. iii., p. 517. Giannone, 1. Xiiv., 
C.4. 



refer the reader to more enlarged histo- 
ries for the first years of Joanna's reign. 
In 1421 the two most powerful hidivid- 
uals were Sforza Attendolo, great con- 
stable, and Sir Gianni Caraccioh, the 
queen's minion, who governed the pal- 
ace with unlimited sway. Sforza, aware 
that the favourite was contriving his ruin, 
and remembering the prison in which he 
had lain more than once since the acces- 
sion of Joanna, determined to anticipate 
his enemies by calling a pretender to 
the crown, another Louis of Anjoti, third 
in descent of that unsuccessful dynasty. 
The Angevin party, though proscribed 
and oppressed, was not extinct ; and the 
populace of Naples, in particular, had 
always been on that side. Caraccioli's 
influence and the queen's dishonourable 
weakness rendered the nobility disaflfect- 
ed. Louis III. therefore had no remote 
prospect of success. But Caraccioli was 
more prudent than favourites, selected 
from such motives, have usually proved. 
Joanna was old and childless ; the rever- 
sion to her dominions was a valuable 
object to any prince in Europe. None 
was so competent to assist her, Adoption of 
or so likely to be influenced by AUonsoof 
the hope of succession, as Al- ^'^^^°'^- 
fonso, king of Aragon and Sicily. That 
island, after the reign of its de- Affairs of 
liverer, Frederick I., had unfor- ^ic'iy- 
tunately devolved upon weak or infant 
princes. One great family, the Chiara- 
monti, had possessed itself of half Sicily ; 
not by a feudal title, as in other king- 
doms, but as a kind of counter-sovereign- 
ty, in opposition to the crown, though 
affecting rather to bear arms against the 
advisers of their kings than against them- 
selves. The marriage of Maria, queen 
of Sicily, with Martin, son of the King 
of Aragon, put an end to the national 
independence of her country. Dying 
without issue, she left the crown to her 
husband. This was consonant perhaps 
to the received law of some European 
kingdoms. But, upon the death of Mar- 
tin, in 1409, his father, also named Mar- 
tin, king of Aragon, took possession, as 
heir to his son, without any election by 
the Sicilian parliament. The Chiara- 
monti had been destroyed by the younger 
Martin, and no party remained to make 
opposition. Thus was Sicily united to 
the crown of Aragon. Alfonso, who 
now enjoyed those two crowns, gladly 
embraced the proposals of the Queen of 
Naples. They were founded indeed on 
the most substantial basis, mutual inter- 
est. She adopted Alfonso as her son 
and successor, while he bound himself 



190 



EUROPE DURING THE MIDDLE AGES. 



[Cmap. III. 



to employ his forces in delivering a king- 
dom that was to become his own. Louis 
of Anjou, though acknowledged in sever- 
al provinces, was chiefly to depend upon 
the army of Sforza ; and an array of Ital- 
ian mercenaries could only be kept by 
means which he was not able to apply. 
The King of Aragon, therefore, had far 
the better prospects in the war, when 
one of the many revolutions of this 
reign defeated his immediate expecta- 
tions. Whether it was that Alfonso's no- 
ble and affable nature afforded a contrast 
which Joanna was afraid of exhibiting to 
the people, or that he had really formed a 
plan to anticipate his succession to the 
throne, she became more and more dis- 
trustful of her adopted son ; till, an open 
rupture having taken place, she entered 
into a treaty with her hereditary competi- 
tor, Louis of Anjou, and, revoking the 
adoption of Alfonso, substituted 
tion'^ln°ra- ^^^ French prince in his room, 
vouror The King of Aragon was dis- 
Louisof appointed by this unforeseen 
"■'°"" stroke, which, uniting the Ange- 
vin faction with that of the reigning fami- 
ly, made it impracticable for him to main- 
tain his ground for any length of time in 
the kingdom. Joanna reigned for more 
than ten years without experiencing any 
inquietude from the pacific spirit of Louis, 
who, content with his reversionary hopes, 
lived as a sort of exile in Calabria.* 
Upon his death, the queen, who did not 
long survive him, settled the kingdom on 
his brother Regnier. The Neapolitans 
were generally disposed to execute this 
bequest. But Regnier was unluckily at 
that time a prisoner to the Duke of Bur- 
gundy ; and though his wife maintained 
the cause with great spirit, it was diffi- 
cult for her, or even for himself, to con- 



* Joanna's great favourite, Caraccioli, fell a vic- 
tim some time before his mistress's death to an in- 
trigue of the palace ; the Dutchess of Sessia, a new 
favourite, having prevailed on the feeble old queen 
to permit him to be assassinated. About this time 
Alfonso had every reason to hope for the renewal 
of the settlement in his favour. Caraccioli had 
himself opened a negotiation with the King of Ar- 
agon ; and, after his death, the Dutchess of Sessia 
embarked in the same cause. Joan even revoked 
secretly the adoption of the Duke of Anjou. This 
circumstance might appear doubtful ; but the his- 
torian to whom I refer has published the act of 
revocation itself, which bears date April 11th, 1433. 
Zurita (Anales de Aragon, t. iv., p. 217) admits 
that no other writer, cither contemporary or sub- 
Bequent, has mentioned any part of the transaction, 
which must have been kept very secret; but his 
authority is so respectable, that I thought it worth 
notice, however uninteresting these remote in- 
trigues may appear to most readers. Joanna soon 
changed her mind again, and took no overt steps 
in favour of Alfonso 



tend against the King of Aragon, who 
immediately laid claim to the kingdom. 
After a contest of several years, Reg- 
nier, having experienced the treacherous 
and selfish abandonment of his friends, 
yielded the game to his adversary ; and 
Alfonso founded the Aragonese line of 
sovereigns at Naples, deriving preten- 
sions more splendid than just from Man- 
fred, from the house of Swabia, and from 
Roger Guiscard.* 

In the first year of Alfonso's Neapoli- 
tan war, he. was defeated and Alfonso, 
taken prisoner by a fleet of the king of 
Genoese, who, as constant ene- ^*p''=^- 
mies of the Catalans in all the naval war- 
fare of the Mediterranean, had willingly 
lent their aid to the Angevin party. Ge- 
noa was at this time subject to Filippo 
Maria, duke of Milan ; and her royal 
captive was transmitted to his court. 
But here the brilliant graces of Alfonso's 
character won over his conqueror, who 
had no reason to consider the war as his 
own concern. The king persuaded him, 
on the contrary, that a strict alliance 
with an Aragonese dynasty in Naples 
against the pretensions of any French 
claimant, would be the true policy and 
best security of Milan. That city, which 
he had entered as a prisoner, he left as a 
friend and ally. From this time FiHppo 
Maria Visconti and Alfonso were firmly 
united in their Italian politics, and formed 
one weight of the balance, which the re- 
publics of Venice and Florence kept in 
equipoise. After the succession of Sfor- 
za to the dutchy of Milan, the nisconnex 
same alliance was generally pre- ion wah 
served. Sforza had still more '^'''*" 
powerful reasons than his predecessor 
for excluding the French from Italy, his 
own title being contested by the Duke of 
Orleans, who derived a claim from his 
mother Valentine, a daughter of Gian 
Galeazzo Visconti. But the two re- 
publics were no longer disposed towards 
War. Florence had spent a great deal 
without any advantage in her contest 
with Filippo Maria ;t and the new Duke 

* According to a treaty between Frederick III., 
king of Sicily, ind Joanna I., of Naples, in 1363, 
the former monarch was to assume the title of 
King of Trinacria, leaving the original style to the 
Neapolitan hne. But neither he, nor his succes- 
sors in the island, ever complied with this condi- 
tion, or entitled themselves otherwise than kings 
of Sicily ultr^ Pharum, in contradistinction to the 
other kingdom, which they denominated, Sicily 
citra Pharum. Alfonso of Aragon, when he uni- 
ted both these, was the first who took the title, 
King of the t>?^o Sicilies, which his successors have 
retained ever since. — Giannone, t. iii., p. 234. 

t The war ending with the peace of Fenara 



Part II ] 



ITALY. 



191 



of Milan had been the constant personal 
friend of Cosmo de' Medici, who alto- 
gether influenced that republic. At Ven- 
ice, indeed, he had been regarded with 
very different sentiments ; the senate 
had prolonged their war against Milan 
with redoubled animosity after his eleva- 
tion, deeming him a not less ambitious 
and more formidable neighbour than the 
Visconti. But they were deceived in the 
character of Sforza. Conscious that he 
had reached an eminence beyond his 
early hopes, he had no care but to secure 
for his family the possession of Milan, 
without disturbing the balance of Lom- 
bardy. No one better knew tha^ Sforza 
the faithless temper and destructive pol- 
itics of the condottieri, whose interest 
■was placed in the oscillations of intermi- 
nable Avar, and whose defection might 
shake the stability of any government. 
Without peace it was impossible to break 
that ruinous system, and accustom states 
to rely upon their natural resources. 
Venice had Httle reason to expect further 
conquests in Lombardy : and if her am- 
bition had inspired the hope of them, she 
was summoned by a stronger call, that 
of self-preservation, to defend her nu- 
merous and dispersed possessions in the 
Levant, against the arms of Mahomet II. 
All Italy indeed felt the peril that im- 
Quadrupie pended from that side : and these 
league of various motions occasioned a 
1435. quadruple league in 1455, be- 
tween the King of Naples, the Duke 
of Milan, and the two republics, for the 
preservation of peace in Italy. One ob- 
ject of this alliance, and the prevailing 
object with Alfonso, was the implied 
guarantee of his succession in the king- 
dom of Naples to his illegitimate son, 
Ferdinand. He had no lawful issue; 
and there seemed no reason why an ac- 
quisition of his own valour should pass 
against his will to collateral heirs. The 
pope, as feudal superior of the kingdom, 
and the Neapolitan parliament, the sole 
competent tribunal, confirmed the inherit- 
ance of Ferdinand.* Whatever may be 
thought of the claims subsisting in the 
house of Anjou, there can be no question 
that the reigning family of Aragon were 
legitimately excluded from that throne, 
though force and treachery enabled them 
ultimately to obtain it. 

Alfonso, surnamed the Magnanimous, 
Character was by far the most accomplish- 
of Alfonso, ed sovereign whom the fifteenth 
century produced. The virtues of chiv- 



in 1428, is said to have cost the repubUc of Flor- 
ence 3,500,000 florins.— Ammirato, p. 1043. 
* Giannone, 1. xxvi., c. 2. 



airy Avere combined in him Avith the pat- 
ronage of letters, and with more than 
their patronage, a real enthusiasm for 
learning, seldom found in a king, and 
especially in one so active and ambi- 
tious.* This devotion to literature Avas, 
among the Italians of that age, almost as 
sure a passport to general admiration as 
his more chivalrous perfection. Magnif- 
icence in architecture, and the pageantry 
of a splendid court, gave fresh lustre to 
his reign. The Neapolitans perceived 
Avith grateful pride that he lived almost 
entirely among them, in preference to his 
patrimonial kingdom; and forgave the 
heavy taxes, Avhich faults nearly allied to 
his virtues, profuseness and ambition, 
compelled him to impose. f But they re- 
marked a very different character in his 
son. Ferdinand Avas as dark and p j- j 
vindictive as his father was af- " '"^" ' 
fable and generous. The barons, Avho 
had many opportunities of ascertaining 
his disposition, began, immediately upon 
Alfonso's death, to cabal against his suc- 
cession, turning their eyes first to the le- 
gitimate branch of the family [A. D. 
1461], and, on finding that prospect not 
favourable, to John, titular duke of Cala- 
bria, son of Regnier of Anjou, Avho survi- 
ved to protest against the revolution that 
had dethroned him. John was easily 
prevailed upon to undertake an invasion 
of Naples. NotAvithstanding the treaty 
concluded in 1455, Florence assisted him 
Avith money, and Venice at least Avith her 
Avishes ; but Sforza remained unshaken 
in that alliance with Ferdinand, Avhich his 
clear-sighted policy discerned to be the 
best safeguard for his OAvn dynasty. A 
large proportion of the Neapolitan nobil- 
ity, including Orsini, prince of Tarento, 
the most powerful vassal of the crown, 
raised the banner of Anjou, which Avas 
sustained also by the youngest Piccinino, 
the last of the great condottieri, under 
Avhose command the veterans of former 
Avarfare rejoiced to serve. But John un- 
derAvent the fate that had always attend- 
ed his family in their long competition 
for that throne. After some brilliant suc- 
cesses, his Avant of resources, aggravated 
by the defection of Genoa, on Avhose an- 
cient enmity to the house of Aragon he 
had relied, Avas perceived by the "barons 
of his party, Avho, according to the prac- 
tice of their«*ancestors, returned one by 



* A story is told, true or false, that his delight in 
hearing Quintus Curtius read, without any other 
medicine, cured the king of an illness. See other 
proofs of his love of letters in Tiraboschi, t. vL, 
p. 40. 

t Giannone, 1. xxvi. 



192 



EUROPE DURING THE MIDDLE AGES. 



[Chai-. iir. 



one to the allegiance of Ferdinand. [A. 
D. 1464.] 

The peace of Italy was little disturbed, 
except by a few domestic revolutions, for 
State of several years after this Neapol- 
itaiy in the itan war.* Even the most short- 
of'the'fif" sighted politicians were some- 
teemii can- timcs withdrawn from selfish 
*"'"y- objects by the appalling prog- 

ress of the Turks, though there was not 
energy enough in their councils to form 
any concerted plans for their own secu- 
rity. Venice maintained a long, but ulti- 
mately an unsuccessful contest with Ma- 
homet II. for her maritime acquisitions 
in Greece and Albania ; and it was not 



* The following distribution of a tax of 458,000 
florins, imposed, or rather proposed, in 1464, to de- 
fray the expense of a general war against the 
Turks, will give a notion of the relative wealth and 
resources of the Italian powers ; but it is probable 
that the pope rated himself above his fair contin- 
gent. He was to pay 100,000 florins ; the Vene- 
tians 100,000; Ferdinand of Naples 80,000; the 
Duke of Milan 70,000; Florence 50,000 ; the Duke 
of Modena 20,000 ; Siena 15,000 ; the Marquis of 
Mantua 10,000 ; Lucca 8000 ; the Marquis of Mont- 
ferrat 5000. — Sismondi, t. x., p. 229. A similar as- 
sessment occurs, p. 307, where the proportions are 
not quite the same. 

Perhaps it may be worth while to extract an 
estimate of the force of all Christian powers, writ- 
ten about 1454, from Sanuto's Lives of the Doges 
of Venice, p. 963. Some parts, however, appear 
very questionable. The King of France, it is said, 
can raise 30,000 men-at-arms ; but for any foreign 
enterprise, only 15,000. The King of England can 
do the same. These powers are exactly equal; 
otherwise one of the two would be destroyed. The 
King of Scotland, " ch'e signore di grandi paesi e 
popoli con grande poverta," can raise 10,000 men- 
at-arms : The King of Norway the same • The 
King of Spain (Castile) 30,000 : The King of Por- 
tugal 6000 : The Duke of Savoy 8000 : The Duke 
of xMilan 10,000. The republic of Venice can pay 
from her revenues 10,000 : That of Florence 4000 ; 
The pope 6000. The emperor and empire can 
raise 60,000: The King of Hungary 80,000 (not 
men-at-arms, certainly). 

The King of France, in 1414, had 2,000,000 du- 
cats of revenue ; but now only half. The King of 
England had then as much ; now only 700,000. 
The King of Spain's revenue also is reduced by 
the wars from 3,000,000 to 800,000. The Duke of 
Burgundy had 3,000,000 ; now 900,000. The Duke 
of Milan has sunk from 1,000,000 to 500,000 ; Ven- 
ice from 1,100,000, which she possessed in 1423, 
to 800,000 : Florence from 400,000 to 200,000. 

These statistical calculations are chiefly remark- 
able, as they manifest that comprehensive spirit of 
treating all the powers of Europe as parts of a com- 
mon system, which began to actuate the Italians 
of the fifteenth century. Of these enlarged views 
of policy the writings of .iEneas Sylvius afford an 
eminent instance. Besides the n*ore general and 
insensible causes, the increase of navigation and 
revival of literature, this may be ascribed to the 
continual danger from the progress of the Ottoman 
arms, which led the politicians of that part of Eu- 
rope most exposed to them into more extensive 
views as to the resources and dispositions of Chris- 
tian states. 



till after his death relieved Italy from its 
immediate terror that the ambitious re- 
public endeavoured to extend its terri- 
tories by encroaching on the house of 
Este. [A. D. 1482.] Nor had Milan 
shown much disposition towards ag- 
grandizement. Francesco Sforza had 
been succeeded, such is the condition of 
despotic governments, by his son Galeaz- 
zo, a tyrant more execrable than the 
worst of the Visconti. His extreme cru- 
elties, and the insolence of a debauch- 
ery that gloried in the public dishonour 
of families, excited a few daring spirits to 
assassinate him. [A. D. 1476.] The Mi- 
lanese profited by a tyrannicide, the per- 
petrators of which they had not courage 
or gratitude to protect. The regency of 
Bonne of Savoy, mother of the infant 
duke, Gian Galeazzo, deserved the praise 
of wisdom and moderation. [A. D. 1480.] 
But it was overthrown in a few years by 
Ludovico Sforza, surnamcd the Moor, her 
husband's brother; who, while he pro- 
claimed his nephew's majority, and affect- 
ed to treat him as a sovereign, hardly dis- 
guised in his conduct towards foreign 
states that he had usurped for himself 
the sole direction of government. 

The annals of one of the few surviving 
republics, that of Genoa, present Affairs of 
to us, during the fifteentli as well Genoa in 
as the preceding century, an un- <hatage, 
ceasing series of revolutions, the shortest 
enumeration of which would occupy sev- 
eral pages. Torn by the factions of 
Adorni and Fregosi, equal and eternal ri- 
vals, to whom the old patrician families 
of Doria and Fieschi were content to be- 
come secondary, sometimes sinking from 
weariness of civil tumult into the grasp 
of Milan or France, and again, from im- 
patience of foreign subjection, starting 
back from servitude to anarchy, the Ge- 
noa of those ages exhibits a singular con- 
trast to the calm and regular aristocracy 
of tlie last three centuries. The latest 
revolution within the compass of this 
work was in 1488, wlien the Duke of Mi- 
lan became sovereign, an Adorno holding 
the office of doge as his lieutenant. 

Florence, the most illustrious and for- 
tunate of Italian republics, was andofFio- 
now rapidly descending from rence. 
her rank among free commonwealths, 
though surrounded with more than usual 
lustre in the eyes of Europe. We must 
take up the story of that city from the 
revolution of 1382, which restored the 
ancient Guelf aristocracy, or party of the 
Albizi, to the ascendency of which a 
popular insurrection had stripped them. 
Fifty years elapsed during which this 



Part II.] 



ITALY. 



193 



party retained the government in its own 
hands with few attempts at disturbance. 
Their principal adversaries had been ex- 
iled, according to the invariable and per- 
haps necessary custom of a republic ; 
the populace and inferior artisans were 
dispirited by their ill success. Compared 
with the leaders of other factions, Maso 
degP Albizi and Nicola di Uzzano, who 
succeeded him in the management of his 
party, were attached to a constitutional 
liberty. Yet so difficult is it for any 
government, which does not rest on a 
broad basis of public consent, to avoid 
injustice, that they twice deemed it ne- 
cessary to violate the ancient constitu- 
tion. In 1393, after a partial movement 
in behalf of the vanquished faction, they 
assembled a parliament, and established 
Avhat was technically called at Florence 
a Balia.* This was a temporary delega- 
tion of sovereignty to a number, gener- 
ally a considerable number, of citizens, 
who, during the period of their dictator- 
ship, named the magistrates, instead of 
drawing them by lot, and banished sus- 
pected individuals. A precedent so dan- 
gerous was eventually fatal to themselves, 
and to the freedom of their country. Be- 
sides this temporary balia, the regular 
scrutinies periodically made in order to 
replenish the bags, out of which the 
names of all magistrates were drwan by 
lot, according to the constitution estab- 
lished in 1328, were so managed as to ex- 
clude all persons disaffected to the domi- 
nant faction. But, for still greater secu- 
rity, a council of two hundred was form- 
ed, in 1411, out of those alone who had 
enjoyed some of the higher offices with- 
in the last thirty years, the period of the 
aristocratical ascendency, through which 
every proposition was to pass before it 
could be submitted to the two legislative 
councils.! These precautions indicate a 
government conscious of public enmity ; 
and if the Albizi had continued to sway 
the republic of Florence, their jealousy 
of the people would have suggested still 
more innovations, till the constitution 
had acquired, in legal form as well as 
substance, an absolutely aristocratical 
character. 

But, while crushing with deliberate se- 
verity their avowed adversaries, the ru- 
ling party had left one family, whose 
Rise of the prudence gave no reasonable 
Medici. excuse for persecuting them ; 
and whose popularity, as well as wealth, 
rendered the experiment hazardous. The 
Medici were among the most considera- 



* Amniirato, p. 840. 

N 



t Id., p. 961. 



ble of the new, or plebeian nobility. 
From the first years of the fourteenth 
century, their name not very unfre- 
quently occurs in the domestic and mili- 
tary annals of Florence.* Salvestro de' 
Medici, who had been partially implicated 
in the democratical revolution that lasted 
from 1378 to 1382, escaped proscription 
on the revival of the Guelf party, though 
some of his family were afterward ban- 
islied. Throughout the long depression 
of the popular faction, the house of Med- 
ici was always regarded as their conso- 
lation and their hope. That house was 
now represented by Giovanni,f whose 
immense wealth, honourably acquired by 
commercial dealings, which had already 
rendered the name celebrated in Europe, 
was expended with liberality and mag- 
nificence. Of a mild temper, and averse 
to cabals, Giovanni de' Medici did not at- 
tempt to set up a party, and contented 
himself with repressing some fresh en- 
croachments on the popular part of the 
constitution, which the Albizi were dis- 
posed to make. I They, in their turn, 
freely admitted him to that share in pub- 
lic councils to which he was entitled 
by his eminence and virtues ; a proof 
that the spirit of their administration 
was not illiberally exclusive. But on the 
death of Giovanni, his son Cosmo de' 
Medici, inheriting his father's riches and 
estimation, with more talents and more 
ambition, thought it time to avail himself 
of the popularity belonging to his name. 
By extensive connexions with the most 
eminent men in Italy, especially with 
Sforza, he came to be considered as the 
first citizerr of Florence. The ohgarchy 
were more than ever unpopular. Their 
administration, since 1388, had indeed 
been in general eminently successful; 
the acquisition of Pisa, and of other Tus- 
can cities, had aggrandized the republic, 
while from the port of Leghorn her ships 
had begun to trade with Alexandria, and 
sometimes to contend with the Genoese. § 

* The Medici are enumerated by Villani among 
the chiefs of the Black faction in 1304, 1. viii., c. 
71. One of that family was beheaded by order of 
the Duke of Athens in 1343, 1. xii., c. 2. It is sin- 
gular that Mr. Roscoe should refer their first ap- 
pearance in history, as he seems to do, to the siege 
of Scarperi, in 1351. 

t Giovanni was not nearly related to Salvestro 
de' Medici. Their families are said per lungo trat- 
to allontanarsi. — Ammirato, p. 992. Nevertheless, 
his being drawn gonfalonier, in 1421 , created a great 
sensation in the city, and prepared the way to the 
subsequent revolution. — Ibid. Machiavelli, 1. iv. 

X MachiavelU, Istoria Fiorent., 1. iv. 

<) The Florentines sent their first merchant ship 
to Alexandria in 1422, with g:reat and anxious 
hopes. Prayers were ordered for the s,uccess of 



104 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ill 



But an unprosperous war with Lucca di- 
minished a reputation which was never 
sustained by public affection. Cosmo 
and his friends aggravated the errors of 
the government, which, having lost its 
wise and temperate leader, Nicola di 
Uzzano, had fallen into the rasher hands 
of Rinaldo degP Albizi. He incurred the 
blame of being the first aggressor in a 
struggle which had become inevitable. 
[A. D. 1433.] Cosmo was arrested by 
command of a gonfalonier devoted to 
the Albizi, and condemned to banish- 
ment. But the oligarchy had done too 
much or too little. The city was full of 
his friends ; the honours conferred upon 
him in his exile attested the sentiments 
of Italy. Next year he was recalled in 
triumph to Florence, and the Albizi were 
completely overthrown. 

It is vain to expect, that a victorious 
faction will scruple to retaliate upon its 
enemies a still greater measure of injus- 
tice than it experienced at their hands. 
The vanquished have no rights in the 
eyes of a conqueror. The sword of re- 
turning exiles, flushed by victory, and in- 
censed by suffering, falls successively 
upon their enemies, upon those whom 
they suspect of being enemies, upon 
those who may hereafter become such. 
The Albizi had in general respected the 
legal forms of their free republic, which 
good citizens, and perhaps themselves, 
might hope one day to see more effect- 
ive. The Medici made all their govern- 
ment conducive to hereditary monarchy. 
A multitude of noble citizens were driv- 
en from their country ; some were even 
put to death. A balia was appointed for 
ten years, to exclude all the Albizi from 
magistracy, and for the sake of this secu- 
rity to the ruling faction, to supersede 
the legitimate institutions of the republic. 
After the expiration of this period, the 
dictatorial power was renewed on pre- 
tence of fresh danger, and this was re- 
peated six times in twenty-one years.* 
In 1455 the constitutional mode of draw- 



tho republic by sea ; and an embassy despatched 
with presents to concihate the sultan of Babylon, 
that is, of Grand Cairo. — Amtnirato, p. 997. Flo- 
rence had never before been so wealthy. The 
circulating money was reckoned (perhaps extrava- 
gantly) at 4,000,000 florins. The manufactures of 
silk and cloth of gold had never flourished so much. 
Architecture revived under Brunelleschi; litera- 
ture under Leonard Aretin and Filelfo, p. 977. 
There is some truth in M. Sismondi's remark, 
that the Medici have derived part of their glory 
from their predecessors in government, whom 
they subverted, and whom they have rendered ob- 
scure. But the Milanese war, breaking out in 
1423 tended a good deal to empoverish the city. 
* Machiavelli, 1, v. Ammirato, 



ing magistrates was permitted to revive, 
against the wishes of some of the leading 
party. They had good reason to be jeal- 
ous of a liberty which was incompatible 
with their usurpation. The gonfaloniers, 
drawn at random from among respecta- 
ble citizens, began to act with an inde- 
pendence to which the new oligarchy 
was little accustomed. Cosmo, mdeed, 
the acknowledged chief of the party, per- 
ceiving that some who had acted in insub- 
ordination to him were looking forward 
to the opportunity of becoming them- 
selves its leaders, was not unwilling to 
throw upon them the unpopularity attach- 
ed to a usurpation by which he had main- 
tained his influence. Without his appa^ 
rent participation, though not against his 
will, the free constitution was again sus- 
pended by a balia appointed for the nomin- 
ation of magistrates ; and the regular draw- 
ing of names by lot was never, I believe, 
restored.* Cosmo died at an advanced 
age in 1464. His son, Piero de' Medici, 
though not deficient either in virtues or 
abilities, seemed too infirm in health for the 
administration of public affairs. At least 
he could only be chosen by a sort of he- 
reditary title, which the party above men- 
tioned, some from patriotic, more from 
selfish motives, were reluctant to admit. 
A strong opposition was raised to the 
family pretensions of the Medici. Like 
all Florentine factions, it tnisted to vio- 
lence ; and the chance of arms was not 
in its favour. There is little to regret in 
the downfall of that oligarchy, which 
had all the disregard of popular rights, 
without the generous virtues of the Me- 
dici. f From this revolution in 1466, when 
some of the most considerable citizens 
were banished, we may date an acknowl- 
edged supremacy in the house of Medici, 
the chief of which nominated the regular 
magistrates, and drew to himself the 
whole conduct of the republic. 

The two sons of Piero, Lorenzo and 
Julian, especially the former, Lorenzo de 
though young at their father's Meitici. 
death [A. D. 1469], assumed, by the re- 
quest of their friends, the reins of gov- 
ernment. It was impossible that, among 
a people who had so many recollections 
to attach to the name of liberty, among 
so many citizens whom their ancient 
constitution invited to public trust, tlie 
control of a single family should excite 
no dissatisfaction ; and perhaps their want 

* Ammirato, t. ii., p. 82-87. 

t Ammirato, p. 93. Roscoe's Lorenzo de' Me- 
dici, ch. 2. Machiavelli. Sismondi. The two 
latter are perpetual references in this part of hislo 
ry, where no other is made. 



Part II.] 



JTALY. 



195 



of any positive authority heightened the 
appearance of usurpation in their influ- 
ence. But, if the people's wish to resign 
their freedom gives a title to accept the 
government of a country, the Medici 
were no usurpers. That family never 
lost the affections of the populace. The 
cry of Palle, Palle (their armorial distinc- 
tion), would at any time rouse the Flor- 
entines to defend the chosen patrons of 
the republic. If their substantial influ- 
ence could before be questioned, the con- 
spiracy of the Pazzi, wherein Julian per- 
ished, excited an enthusiasm for the sur- 
viving brother that never ceased during 
his life. Nor was this any thing unnatu- 
ral, or any severe reproach to Florence. 
All around, in Lombardy and Romagna, 
the lamp of liberty had long since been 
extinguished in blood. The freedom of 
Siena and Genoa was dearly purchased 
by revolutionary proscriptions; that of 
Venice was only a name. The republic 
which had preserved longest, and with 
greatest purity, that vestal fire, had at 
least no relative degradation to fear in 
surrendering herself to Lorenzo de' Me- 
dici. I need not in this place expatiate 
upon what the name instantly suggests, 
the patronage of science and art, and the 
constellation of scholars and poets, of 
architects and painters, whose reflected 
beams cast their radiance around his 
head. His political reputation, though 
far less durable, was in his own age as 
conspicuous as that which he acquired in 
the history of letters. Equally active and 
sagacious, he held his way through the 
varying combinations of Italian policy, 
always with credit, and generally with 
success. Florence, if not enriched, was 
upon the whole aggrandized during his 
administration, which was exposed to 
some severe storms from the unscrupu- 
lous adversaries, Sixtus IV. and Ferdi- 
nand of Naples, whom he was compelled 
to resist. As a patriot, indeed, we never 
can bestow upon Lorenzo de' Medici the 
meed of disinterested virtue. He com- 
pleted that subversion of the Florentine 
republic which his two immediate ances- 
tors had so well prepared. The two 
councils, her regular legislature, he su- 
perseded by a permanent senate of sev- 
enty persons ;* while the gonfalonier and 



* Ammirato, p. 145. Machiavel says, 1. viii., that 
this was done ristnngere il governo, e che le de- 
liberazioni importanti si riducessero in minore nu- 
mero. Mr. Roscoe, vol. ii., p. 53, is puzzled how 
to e.icplain this decided breach of the people's rights 
by his hero. But though it rather appears from 
Ainmirato's expressions that the two councils were 
now abolished, yet from M. Sismondi, t. xi., p. 186, 
who quotes an author I have not seen, and from 
N2 



priors, become a mockery and pag-eant to 
keep up the illusion of liberty, were taught 
that, in exercising a legitimate authority 
without the sanction of their prince, a 
name now first heard at Florence, they in- 
curred the risk of punishment for their au 
dacity.* Even the total dilapidation of his 
commercial wealth was repaired at .the 
cost of the state ; and the republic dis- 
gracefully screened the bankruptcy of the 
Medici by her own.f But, compared with 
the statesmen of his age, we can re- 
proach Lorenzo with no heinous crime. 
He had many enemies ; his descendants 
had many more ; but no unequivocal 
charge of treachery or assassination has 
been substantiated against his memory. 
By the side of Galeazzo or Ludovico 
Sforza, of Ferdinand or his son Alfonso 
of Naples, of the pope Sixtus IV., he 
shines with unspotted lustre. [A. D. 
1492.] So much was Lorenzo esteemed 
by his contemporaries, that his premature 
death has frequently been considered as 



Nardi, p. 7, I should infer that they still formally 
subsisted. 

* Cambi, a gonfalonier of justice, had, in concert 
with the priors, admonished some public officers 
for a breach of duty. Fu giudicato questo atto 
molto superbo, says Ammirato, che senza partici- 
pazione di Lorenzo de' Medici, principe del gover- 
no, fosse seguito, che in Pisa in quel tempo si ri- 
trovava, p. 184. The gonfalonier was fined for ex- 
ecuting his constitutional functions. This was a 
downright confession that the republic was at an 
end ; and all it provokes M. Sismondi to say is 
not too much, t. xi., p. 345. 

t Since the Medici took on themselves the cliar- 
acter of princes, they had forgotten how to be mer- 
chants. But, imprudently enough, they had not 
discontinued their commerce, which was of course 
mismanaged by agents, whom they did not overlook. 
The consequence was the complete dilapidation 
of their vast fortune. The public revenues had 
been for some years applied to make up its defi- 
ciencies. But from the measures adopted by the 
repubUc, if we may still use that name, she should 
appear to have considered herself, rather than Lo- 
renzo, as the debtor. The interest of the public 
debt was diminished one half. Many charitable foun- 
dations were suppressed. The circulating specie 
was taken at one fifth below its nominal value in 
payment of taxes, while the government continued 
to issue it at its former rate. Thus was Lorenzo re- 
imbursed a part of his loss at the expense of all his 
fellow-citizens. — Sismondi, t. xi., p. 347. It is 
slightly alluded to by Machiavel. 

The vast expenditure of the Medici for the sake 
of political influence would of itself have absorbed 
all their profits. Cosmo is said by G^icciardini to 
have spent 400,000 ducats in building churches, 
monasteries, and other public works, 1. i., p. 91. 
The expenses of the family between 1434 and 1471 
in buildings, charities, and taxes alone, amounted 
to 663.755 florins ; equal in value, according to Sis- 
mondi, to 32,000,000 francs at present.— Hist, des 
Republ., t. x.,p. 173. They seem to have advan- 
ced moneys imprudently, through their agents, to 
Edward IV., who was not the best of debtors. — 
Comines, Mem. de Charles VIII., L vii., c. 6. 



196 



EUROPE DURING THE- MIDDLE AGES. 



[Chap. III. 



the cause of those unhappy revolutions 
that speedily ensued, and which his fore- 
sight would', it was imagined, have been 
able to prevent ; an opinion which, wheth- 
er founded in probability or otherwise, 
attests the common sentiment about his 
character. 

If indeed Lorenzo de' Medici could not 
Pretensions of ^ave changed the destinies of 
France upon Italy, howevcr premature his 
Naples. death may appear, if we con- 

sider the ordinary duration of human ex- 
istence, it must be admitted, that for his 
own welfare, perhaps for his glory, he 
had lived out the full measure of his 
time. An age of new and uncommon 
revolutions was about to arise, among 
the earhest of which the temporary doMm- 
fall of his family was to be reckoned. 
The long-contested succession of Naples 
was again to involve Italy in war. The 
ambition of strangers was once more to 
desolate her plains. Ferdinand, king of 
Naples, had reigned for thirty years after 
the discomfiture of his competitor with 
success and ability ; but with a degree of 
ill faith as well as tyranny towards his 
subjects that rendered his government 
deservedly odious. His son Alfonso, 
whose succession seemed now near at 
hand, was still more marked by these 
• vices than himself.* Meanwhile, the 
pretensions of the house of Anjou had 
legally descended, after the death of old 
Regnier, to Regnier, duke of Lorraine, 
his grandson by a daughter ; whose mar- 
riage into the house of Lorraine had, 
however, so displeased her father, that 
he bequeathed his Neapolitan title, along 
with his real patrimony, the county of 
Provence, to a count of Maine ; by whose 
testament they became vested in the 
crown of France. Louis XL, while he 
took possession of Provence, gave him- 
self no trouble about Naples. But Charles 
VIII., inheriting his father's ambition 
without that cool sagacity which restrain- 
ed it in general from impracticable at- 
tempts, and far better circumstanced at 
home than Louis had ever been, was 
ripe for an expedition to vindicate his 
pretensions upon Naples, or even for 
more extensive projects. It was now 
two centuries since the kings of France 
had aimed, by intervals, at conquests in 
Italy. Philip the Fair and his succes- 
sors were anxious to keep up a connex- 
ion with the Guelf party, and to be con- 

* Comines, who speaks sufficiently ill of the 
father, sums up the son's character very concisely: 
Nul hoinme n'a este plus cruel que lui, ne plus 
mauvais, ne plus vicieux et plus infect, ne plus 
gourmand que lui, I. vii., c. 13. 



sidered its natural heads, as the German 
emperors were of the Ghibelins. The long 
English wars changed all views of the 
court of France to self-defence. But, in 
the fifteenth century, its plans of aggran- 
dizement beyond the Alps began to re- 
vive. Several times, as I have mention- 
ed, the republic of Genoa put itself under 
the dominion of France. The dukes of 
Savoy, possessing most part of Pied- 
mont, and masters of the mountain-pass- 
es, were, by birth, intermarriage, and 
habitual policy, completely dedicated to 
the French interests.* In the former wars 
of Ferdinand against the house of Anjou, 
Pope Pius II., a very enlightened states- 
man, foresaw the danger of Italy from 
the prevailing influence of France, and 
deprecated the introduction of her ar- 
mies. f But at that time the central parts 
of Lombardy were held by a man equally 
renowned as a soldier and a politician, 
Francesco Sforza. Conscious that a 
claim upon his own dominions subsisted 
in the house of Orleans, he maintained a 
strict alliance with the Aragonese dynas- 
ty at Naples, as having a common interest 
against France. But after his death the 
connexion between Milan and Naples 
came to be weakened. In the new sys- 
tem of alliances, Milan and Florence, 
sometimes including Venice, were com- 
bined against Ferdinand and Sixtus IV., 
an unprincipled and restless pontiff. Lu- 
dovico Sforza, who had usurped the 
guardianship of his nephew, the Duke 
of Milan, found, as that young man ad- 
vanced to maturity, that one crime requir- 
ed to be completed by another. To 



* Denina, Storia dell' Italia Occidentale, t. ii., 
passim. Louis XI. treated Savoy as a fief of 
France ; interfering in all its affairs, and even 
taking on himself the regency after the death of 
Philibert I., under pretence of preventing disor- 
ders, p. 185. The Marquis of Saluzzo, who pos- 
sessea considerable territories in the south of Pied- 
mont, had done homage to France ever since 1353 
(p. 40), though to the injury of his real superior, 
the Duke of Savoy. This gave France another 
pretext for interference in Italy, p. 187. 

f Cosmo de' Medici, in a conference with Pius 
II. at Florence, having expressed his surprise 
that the pope should support Ferdinand: Pontifex 
haud ferendum fuisse ait, regem a se constitutimi, 
armis ejici, neque id Italiae libertati conducere; 
Gallos, si regnum obtinuissent, Senas haud dubife 
subacturos; Florentines adversus lilia nihil actu- 
ro8 ; Borsium Mutinae ducem Gallis galliorem 
videri ; Flaminias regulos ad Francos inclinare; 
Genuam Francis subesse, et civitatem Astensem; 
si pontifex Ilomanus aliquando Francoruni amicus 
assumatur, nihil reliqui in Italia remanere quod 
non transeat in Galloruni nomen ; tueriseltaliam, 
dum Ferdinandum tueretur. — Commentar. Pii Se- 
cundi, 1. iv., p. 96. Spondanus, who led me to this 
passage, is very angry ; but the year 1494 proved 
Pius 11. to be a wary statesman. 



Chap. IV.] 



SPAIN. 



197 



depose and murder his ward was how- 
ever a scheme that prudence, though not 
conscience, bade him hesitate to execute. 
He had rendered Ferdinand of Naples, 
and Piero de' Medici, Lorenzo's heir, his 
decided enemies. A revokition at ]Milan 
would be the probable result of his con- 
tinuing in usurpation. [A. D. 1439.] In 
these circumstances, Ludovico Sforza 
excited the King of France to undertake 
the conquest of Naples.* 

So long as the three great nations of 
Europe were unable to put forth their 
natural strength through internal separa- 
tion or foreign war, the Italians had so 
little to dread for their independence, 
that their pohcy was altogether directed 
to regulating the domestic balance of 
power among themselves. In the latter 
part of the fifteenth century, a more en- 
larged view of Europe would have mani- 
fested the necessity of reconciling petty 
animosities, and sacrificing petty ambi- 
tion, in order to preserve the nationality 
of their governments ; not by attempting 
to melt down Lombards and Neapolitans, 
principalities and republics, into a single 
monarchy, but by the more just and ra- 
tional scheme of a common federation. 
The politicians of Italy were abundantly 
competent, as far as cool and clear un- 



derstandings could render them, to per- 
ceive the interests of their country. But 
it is the will of Providence, that the high- 
est and surest wisdom, even in matters 
of policy, should never be unconnected 
with virtue. In relieving himself from an 
immediate danger, Ludovico Sforza over- 
looked the consideration that the pre- 
sumptive heir of the King of Franco 
claimed by an ancient title that principal- 
ity of Milan, which he was compassing 
by usurpation and murder. But neither 
Milan nor Naples was free from other 
claimants than France, nor was she re- 
served to enjoy unmolested the spoil of 
Italy. A louder and a louder strain of 
warlike dissonance will be heard from 
the banks of the Danube, and from the 
Mediterranean gulf. The dark and wily 
Ferdinand, the rash and lively Maximil- 
ian, are preparing to hasten into the lists ; 
the schemes of ambition are assuming 
a more comprehensive aspect ; and the 
controversy of Neapolitan succession 
is to expand into the long rivalry be- 
tween the houses of France and Austria. 
But here, while Italy is still untouched, 
and before as yet the first lances of 
France gleam along the defiles of the 
Alps, we close the history of the Middle 
Ages. 



CHAPTER IV. 



THE HISTORY OF SPAIN TO THE CONQUEST OF GRANADA. 



Kingdom of the Visigoths. — Conquest of Spain by 
the Moors. — Gradual Revival of the Spanish 
Nation. — Kingdoms of Leon, Aragon, Navarre, 
and Castile, successively formed. — Chartered 
Towns of Castile. — Military Orders. — Conquest 
of Ferdinand III. and James of Aragon. — Causes 
of the delay in expelling the Moors. — History of 
Castile continued. — Character of the government. 
— Peter the Cruel. — House of Trastamare. — 
John II. — Henry IV. — Constitution of Castile. — 
National Assemblies or Cortes. — Their constitu- 
ent parts.— Right of Taxation.— Legislation.— 
Privy Council of Castile. — Laws for the protec- 
tion of Liberty.— Imperfections of the Constitu- 
tion.— Aragon. — Its history in the fourteenth and 
fifteenth centuries. — Disputed succession. — Con- 
stitution of Aragon.— Free spirit of its Aristoc- 
racy.— Privilege of Union.— Powers of the Jus- 
tiza.— Legal Securities.— Illustrations. — Other 
Constitutional Laws. — Valencia and Catalonia. 
— Union of two Crowns by the Marriage of Fer- 
dinand and Isabella. — Conquest of Granada. 

The history of Spain during the mid- 
dle ages ought to commence with the 

* Guicciardini, 1. i. 



dynasty of the Visigoths ; a na- Kingdom of 
tion among the first that assault- visigoths in 
ed and overthrew the Roman *p^'"- 
Empire, and whose estabhshment prece- 
ded by nearly half a century the invasion 
of Clovis. Vanquished by that conquer- 
or in the battle of Poitiers, the Gothic 
monarchs lost their extensive dominions 
in Gaul, and transferred their residence 
from Toulouse to Toledo. But I hold 
the annals of barbarians so unworthy of 
remembrance, that I will not detain the 
reader by naming one sovereign of that 
obscure race. The Merovingian kings of 
France were perhaps as deeply stained 
by atrocious crimes, but their history, 
slightly as I have noticed it, is the neces- 
sary foundation of that of Charlemagne, 
and illustrates the feudal system and 
constitutional antiquities of France. If 
those of Castile had been equally inter- 
esting to the historical student, I should 
have taken the same pains to trace their 



198 



EUROPE DURING THE MIDDLE AGES. 



[Chap. If. 



original in the Gothic monarchy. For 
that is at least as much the primary 
source of the old Castilian constitution, 
as the Anglo-Saxon polity of our own. 
It may, however, suffice to mention, that 
it differed in several respects from that 
of the Franks during the same period. 
The crown was less hereditary, or at 
least the regular succession was more 
frequently disturbed. The prelates had a 
still more commanding influence in tem- 
poral government. The distinction of 
Romans and barbarians was less marked, 
the laws more uniform, and approaching 
nearly to the imperial code. The power 
of the sovereign w^as perhaps more hm- 
ited by an aristocratical council than in 
France, but it never yielded to the dan- 
gerous influence of mayors of the palace. 
Civil wars and disputed successions were 
very frequent, but the integrity of the 
kingdom was not violated by the custom 
of partition. 

Spain, after remaining for nearly three 
Conquest centuries in the possession of the 
by the Visigoths, fell under the yoke of 
Saracens. ^^^ Saracens in 712. The fer- 
vid and irresistible enthusiasm which dis- 
tinguished the youthful period of Ma- 
hometanism, might sufl^ciently account 
for this conquest ; even if we could not 
assign additional causes, — the factions 
which divided the Goths, the resentment 
of disappointed pretenders to the throne, 
the provocations of Count Julian, and the 
temerity that risked the fate of an em- 
pire on the chances of a single battle. 
It is more surprising, that a remnant of 
this ancient monarchy should not only 
have preserved its national liberty and 
name in the northern mountains, but 
waged for some centuries a successful, 
and generally an offensive warfare against 
the conquerors, till the balance was com- 
pletely turned in its favour, and the 
Moors were compelled to maintain almost 
as obstinate and protracted a contest for 
a small portion of the peninsula. But the 
Arabian monarchs of Cordova found in 
their success and imagined security a pre- 
text for indolence ; even in the cultivation 
of science, and contemplation of the mag- 
nificent architecture of their mosques 
and palaces, they forgot tlieir poor but 
daring enemies in the Asturias ; while, 
according to the nature of despotism, the 
fruits of wisdom or bravery in one gen- 
eration were lost in the follies and ef- 
feminacy of the next. Their kingdom 
was dismembered by successful rebels, 
who formed the states of Toledo, Hues- 
ca, Saragosa, and others less eminent ; 
and these, in their own mutual contests, 



not only relaxed their natural enmity to- 
wards the Christian princes, but some- 
times sought their alliance.* 

The last attack, which seemed to en- 
danger the reviving rtionarchy of Kingdom 
Spain, was that of Almanzor, the "'' '-^o"- 
illustrious vizier of Haccham II., towards 
the end of the tenth century, wherein the 
city of Leon, and even the shrine of Com- 
postella, were burnt to the ground. For 
some ages before this transient reflux, 
gradual encroachments had been made 
upon tlie Saracens ; and the kingdom, 
originally styled of Oviedo, the seat of 
which was removed to Leon in 914, had 
extended its boundary to the Duero, and 
even to the mountainous chain of the 
Guadarrama. The province of old Cas- 
tile, thus denominated, as is generally 
supposed, from the castles erected, while 
it remained a march or frontier against 
the Moors, was governed by hereditary 
counts, elected originally by the provin- 
cial aristocracy, and virtually independ- 
ent, it seems probable, of the kings of 
Leon, though commonly servirrg them in 
war, as brethren of the same faith and 
nation. I 

While the kings of Leon were thus occu- 
pied in recovering the western provinces, 
another race of Christian princes grew up 
silently under the shadow of the Pyrene- 
an mountains. Nothing can be Kingdoms of 
more obscure than tlie begin- Navarre and 
nings of those little states, ^'^^s^n. 
which were formed in Navarre and the 
country of Soprarbe. They might per- 
haps be almost contemporaneous with the 
Moorish conquests. On both sides of the 
Pyrenees dwelt an aboriginal people ; the 
last to undergo the yoke, and who had nev- 
er acquired the language, of Rome. We 
know little of these intrepid mountain- 
eers in tlie dark period which elapsed 
under the Gothic and Frank dynasties, 
till we find them cutting off the rear- 
guard of Charlemagne in Roncesvalles, 

*• Cardonne, Hist, de I'Afrique et de I'Espagne. 

t According to Roderic of Tpledo, one of the 
earliest Spanish historians, though not older than 
the beginning of the thirteenth century, the nobles 
of Castile, in the reign of Froila, about the year 
924, sibi et posteris providerunt, et duos milites non 
de potentioribus, sed de prudentioribus elegerunt, 
quod et judices statuerunt, ut dissensiones patria 
et qnerelantium causse suo judiciosopirentur, 1. v., 
c. 1. Several other passages in the same writer 
prove that the counts of Castile were nearly inde- 
pendent of Leon, at least from the time of Ferdi- 
nand Gonsalvo about the middle of the tenth centu- 
ry. Ex quo iste suscepit sua; patriae coinitatum, 
cessaverunt reges Astunarum insoiescere in C:is- 
tellam, et a flumine Pisorica nihil amplius vind:ca- 
rnnt, 1. v., c. 2. Marina, in his Eiisayo Historico 
Crilico, is disposed to controvert this fact. 



Chap. IV.] 



SPAIN". 



199 



and maintaining at least their independ- 
ence, though seldom, like the kings of 
Asturias, waging offensive war against 
the Saracens. The town of Jaca, situa- 
ted among long narrow valleys that in- 
tersect the southern ridges of the Pyre- 
nees, was the capital of a little free state, 
which afterward expanded into the mon- 
archy of Aragon.* A territory rather 
more extensive belonged to Navarre, the 
kings of which fixed their seat at Pam- 
pelona. Biscay seems to have been di- 
vided between this kingdom and that of 
Leon. The connexion of Aragon or So- 
prarbe and Navarre was very intimate, 
and they were often united under a single 
chief. 

At the beginning of the eleventh centu- 
Kingdoinof ry, Sancho the Great, king of 
Castile. Navarre and Aragon, was ena- 
bled to render his second son, Ferdinand, 
count, or, as he assumed the title, King 
of Castile. This effectually dismember- 
ed that province from the kingdom of 
Leon ; but their union soon became more 
complete than ever, though with a re- 
versed supremacy. Bermudo III., king of 
Leon, fell in a battle with the new king 
of Castile, who had married his sister; 
and Ferdinand, in her right or in that of 
conquest, became master of the united 
monarchy. This cessation of hostilities 
between the Christian states enabled 
them to direct a more unremitting ener- 
gy against their ancient enemies, who 
were now sensibly weakened by the va- 
rious causes of decline to wliich I have 
already alluded. During the eleventh 
century, the Spaniards were almost al- 
ways superior in the field; the towns, 



* The Fueros, or written laws of Jaca, were 
perhaps more ancient than any local customary in 
Europe. Alfonso III. confirms them by name of the 
ancient usages of Jaca. They prescribe the de- 
scent of lands and moveables, as well as the elec- 
tion of municipal magistrates. The following law, 
which enjoins the rising in arms on a sudden emer- 
gency, illustrates, with a sort of romantic wildness, 
tKe manners of a pastoral but warlike people, and 
reminds us of a well-known passage in the Lady of 
the Lake. De appellitis ita statuimus. Cum hom- 
ines de villis, vel qui slant in montanis cum suis 
ganatis [gregibus], audierint appellitum; omnes 
capiant arma, et dimissis ganatis, et omnibuo aliis 
BUis faziendis [negotiis] sequantur appellitum. Et 
$1 illi qui fuerint magis remoti, invenerint in villa 
magis proxima appellito [deest aliqiiid ?] omnes 
qui nondum fuerint egressi tunc villam illam, quae 
tardius secuta est appellitum, pecent fsolvant] 
unam baccam [vaccam] ; et unusquisque homo ex 
illis qui tardius secutus est appellitum, et quem 
magis remoti praecesserint, pecet tres solidos, quo- 
modo nobis videbitur, partiendos. Tamen in Jaca 
et in aliis villis, sint aliqui nominati et certi, quos 
elegerint consules, qui renianeant ad villas custo- 
dieiuias et defendendas. — Bianca) Commentaria in 
Schotti Hispania lUustrata, p. 595. 



which they began by pillaging, they gradu- 
ally possessed ; their valour was height- 
ened by the customs of chivalry, and 
inspired" by the example of the Cid ; and, 
before the end of this age, Alonso VI. re- 
covered the ancient metropolis of the mon- 
archy, the city of Toledo. This capture of 
was the severest blow which the Toledo, 
Moors had endured, and an unequivocal 
symptom of that change in their relative 
strength which, from being so gradual, 
was the more irretrievable. Calamities 
scarcely inferior fell upon them in a dif- 
ferent quarter. The khigs of Aragon (a 
title belonging originally to a little dis- 
trict upon the river of that name) had 
been cooped up almost in the mountains 
by the small ]NIoorish states north of the 
Ebro, especially that of Huesca. About 
the middle of the eleventh century, they 
began to attack their neighbours with 
success ; the Moors lost one town after 
another, till, in 1118, exposed and weak- 
ened by the reduction of all these places, 
the city of Saragosa, in which a And sara- 
line of Mahometan princes had sosa. 
flourished for several ages, became the 
prize of Alfonso 1., and the capital of his 
kingdom. The southern parts of what 
is now the province of Aragon were suc- 
cessively reduced during the twelfth cen- 
tury ; while all new Castile and Estre- 
madura became annexed in the same 
gradual manner to the dominion of the 
descendants of Alfonso VI. 

Although the feudal system cannot 
be said to have obtained in the >io^e or set- 
kingdoms of Leon and Castile, iiing the 
their peculiar situation gave the "ew con- 
aristocracy a great deal of the "^"^^ ^* 
same power and independence which 
resulted in France and Germany from 
that institution. The territory succes- 
sively recovered from the Moors, like 
waste lands reclaimed, could have no 
proprietor but the conquerors ; and the 
prospect of such acquisitions was a con- 
stant incitement to the nobility of Spain, 
especially to those wlio had settled them- 
selves on the Castilian frontier. In their 
new conquests, they built towns and 
invited Christian settlers, the Saracen 
inhabitants being commonly expelled, 
or voluntarily retreating to the safer 
provinces of the south. Thus Burgos was 
settled by a count of Castile about 880 ; an- 
other fixed his seat at Osma ; a third 
at Sepulveda; a fourth at Salamanca. 
These cities were not free from inces- 
sant peril of a sudden attack till the union 
of the two kingdoms under Ferdinand I., 
and, consequently, the necessity of keep- 
ing in e.xercise a numerous and armed 



200 



EUROPE DURING THE MIDDLE AUES. 



[Chap. IV 



population gave a character of personal 
freedom and privilege to the inferior 
classes, which they hardly possessed at 
so early a period in any other monarchy. 
Villanage seems never to have been 
established in the Hispano-Gothic king- 
doms Leon and Castile ; though I confess 
it was far from being unknown in that 
of Aragon, which had formed its institu- 
tions on a feudal pattern. Since nothing 
makes us forget the arbitrary distinctions 
of rank so much as participation in any 
common calamity, every man who had 
escaped the great sljipwreck of liberty 
and religion in the mountains of Asturi- 
as was invested with a personal dignity, 
which gave him value in his own eyes 
and those of his country. It is probably 
this sentiment, transmitted to posterity, 
and gradually fixing the national charac- 
ter, that has produced the elevation of 
manner remarked by travellers in the 
Castilian peasant. But while these ac- 
quisitions of the nobility promoted the 
grand object of winning back the penin- 
sula from its invaders, they by no means 
invigorated the government, or tended to 
domestic tranquillity. 

A more interesting method of securing 
Chartered the public defence was by the 
towns or institution of chartered towns 
communities. ^^ communities. These were 
established at an earlier period than in 
France and England, and were in some 
degree of a peculiar description. Instead 
of purchasing their immunities, and al- 
most their personal freedom, at the hands 
of a master, the burgesses of Castilian 
towns were invested with civil rights and 
extensive property on the more liberal 
condition of protecting their country. 
The earliest instance of the erection of a 
community is in 1020, when Alfonso V., 
in the corles at Leon, established the priv- 
ileges of that city with a regular code of 
laws, by which its magistrates should 
be governed. The citizens of Carrion, 
Llanes, and other towns, were incorpo- 
rated by the same prince. Sancho the 
Great gave a similar constitution to Nax- 
ara. Sepulveda had its code of laws in 
1076 from Alfonso VI.; in the same reign 
Logrono and Sahagun acquired their priv- 
ileges, and Salamanca not long after- 
ward. The fuero, or original charter of 
a Spanish community, was properly a 
compact, by which the king or lord 
granted a town and adjacent district to 
the burgesses, with various privileges, 
and especially that of choosing magis- 
trates and a common council, who were 
bound to conform themselves to the laws 
prescribed by the founder. These laws^ 



civil as well as criminal, though essen- 
tially derived from the ancient code of 
the Visigoths, which continued to be tho 
common law of Castile till the fourteenth 
or fifteenth century, varied from each 
other in particular usages, which had 
probably grown up and been established 
in these districts before their legal con- 
firmation. The territory held by char- 
tered towns Avas frequently very exten- 
sive, far beyond any comparison with 
corporations in our own country or in 
France ; including the estates of private 
landholders, subject to the jurisdiction 
and control of the municipality, as well 
as its inalienable demesnes, allotted to 
the maintenance of the magistrates and 
other public expenses. In every town 
the king appointed a governor to receive 
the usual tributes, and watch over the 
police and the fortified places williin the 
district; but the administration of justice 
was exclusively reserved to the inhabi- 
tants and their elected judges. Even the 
executive power of the royal officer was 
regarded with jealousy; he was forbid- 
den to use violence towards any one 
without legal process ; and, by the fuero 
of Logrono, if he attempted to enter for- 
cibly into a private house, he might be 
killed with impunity. These democrat- 
ical customs were altered in the four- 
teenth century by Alfonso XI., who 
vested the municipal administration in a 
small number of jurats or regidors. A 
pretext for this was found in some disor- 
ders to which popular elections had led ; 
but the real motive, of course, must have 
been to secure a greater influence for the 
crown, as in similar innovations of some 
English kings. 

In recompense for such liberal conces- 
sions, the incorporated towns were bound 
to certain money payments and to mili- 
tary service. This was absolutely due 
from every inhabitant, Avithout dispensa- 
tion or substitution, unless in case of in- 
firmity. The royal governor and the ma- 
gistrates, as in the simple times of prim- 
itive Rome, raised and commanded the 
militia ; who, in a service always short, 
and for the most part necessary, pre- 
served that delightful consciousness of 
freedom, under the standard of their fel- 
low-citizens and chosen leaders, which 
no mere soldier can enjoy. Every man 
of a certain property was bound to serve 
on horseback, and was exempted in re- 
turn from the payment of taxes. This 
produced a distinction between the cnhal- 
Icrox, or noble class, and the pechcros, or 
payers of tribute. But the distinction 
appears to have been founded only upon 



Chap. IV.] 



SPAIN. 



201 



wealth, as in the Roman equites, and not 
upon hereditary rank, though it most 
likely prepared the way for the latter. 
The horses of these caballcros could not 
be seized for debt ; in some cases they 
were exclusively eligible to magistracy ; 
and their honour was protected by laws 
which rendered it highly penal to insult 
or molest them. But the civil rights of 
rich and poor in courts of justice were as 
equal as in England.* 

The progress of the Christian arms in 
Military Spain may in part be ascribed to 
orders, another remarkable feature in the 
constitution of that country, the military 
orders. These had already been tried 
with signal effect in Palestine ; and the 
similar circumstances of Spain easily led 
to an adoption of the same policy. In a 
very few years after the first institution 
of the Knights Templars, they were en- 
dowed with great estates, or rather dis- 
tricts, won from the Moors, on condition 
of defending their own and the national 
territory. These lay chiefly in the parts 
of Aragon beyond the Ebro, the conquest 
of which was then recent and insecure. f 
So extraordinary was the respect for this 
order, and that of St. John, and so power- 
ful the conviction that the hope of Chris- 
tendom rested upon their valour, that Al- 
fonso the First, king of Aragon, dying 
childless, bequeathed to them his whole 
kingdom ; an example of liberality, says 
Mariana, to surprise future times, and dis- 
please his own.J The states of Aragon 
annulled, as may be supposed, this strange 
testament ; but the successor of Alfonso 
was obliged to pacify the ambitious 
knights by immense concessions of mo- 
ney and territory ; stipulating even not to 
make peace with the Moors against their 
will.^ In imitation of these great mili- 
tary orders, common to all Christendom, 
there arose three Spanish institutions of 
a similar kind, the orders of Calatrava, 
Santiago, and Alcantara. The first of 
these was established in 1158; the sec- 
ond and most famous had its charter 
from the pope in 1175, though it seems 
to have existed previously ; the third 

* I am indebted for this account of municipal 
towns in Castile to a book published at Madrid in 
1808, immediately after the revolution, by the 
Doctor Marina, a canon of the church of St. Isidor, 
entitled, Ensayo Historico-Critico sobre la antigua 
legislacion y principales cuerpos iegales de los rey- 
nos de Lyon y Castilla, especialment sobre el co- 
digode D. Alonso el Sabio, conocido con el nombre 
de las Siete Partidas. This work is perhaps not 
easily to be procured in England : but an article in 
the Edinburgh Review, No. XLIII., will convey a 
sufficient notion of its contents. 

t Mariana, Hist. Hispan., 1. x., c. 10. 

j L. X., c. 1"^. ^ L. x.,c. 18. 



branched off from that of Calatrava at a 
subsequent time.* These were iniUtary 
colleges, having their walled towns in 
different parts of Castile, and governed 
by an elective grand master, whose influ- 
ence in the slate was at least equal to 
that of any of the nobility. In the civil 
dissensions of the fourteenth and fifteenth 
centuries, the chiefs of these incorpo- 
rated knights were often very prominent. 
The kingdoms of Leon and Castile 
were unwisely divided anew by y^na] union 
Alfonso VII., between his sons oi Leon and 
Sancho and Ferdinand, and this ^''"*"'«- 
produced not only a separation, but a re- 
vival of the ancient jealousy, with fre- 
quent wars, for near a century. At 
length, in 1238, Ferdinand III., king of 
Castile, reunited for ever the two branches 
of the Gothic monarchy. He employed 
their joint strength against the Moors, 
whose dominion, though it still embraced 
the finest provinces of the peninsula, was 
sinking by internal weakness, and had 
never recovered a tremendous defeat at 
Banos di Toloso, a few miles from Bay- 
len, in 1210.1 Ferdinand, bursting into 
Andalusia, took its great capi- conquest of 
tal, the city of Cordova [A. D. Andalusia, 
1236], not less ennobled by the cultivation 
of Arabian science, and by the names of 
Avicenna and Averroes, than by the 
splendid works of a rich and munificent 
dynasty.:]: In a few years more, Seville 
was added to his conquests, and the 
Moors lost their favourite regions on 
the banks of the Guadalquivir. And Valencia. 
James I. of Aragon, the victories of 
whose long reign gave him the surname 
of Conqueror, reduced the city and king- 
dom of Valencia, the Balearic Isles, and 
the kingdom of Murcia ; but the last was 



» L. xi., c. 6, 13; 1. xii., c. 3. 

t A. letter of Alfonso IX., who gained this victory, 
to Pope Innocent HI., puts the loss of the Moors 
at 180,000 men. The Arabian historians, though 
without specifying numbers, Seem to confirm this 
immense slaughter, which nevertheless it is diffi- 
cult to conceive before the invention of gunpow- 
der, or indeed since. — Cardonne, t. ii., p. 327. 

X If we can rely on a Moorish author, quoted by 
Cardonne (t. i., p. 337), the city of Cordova con- 
tained, I know not exactly in what century, 
200,000 houses, 600 mosques, and 900 public baths. 
There were 12,000 towns and villages on the banks 
of the Guadalquivir. The mines of gold and silver 
were very productive. And the revenues of the 
khalifs of Cordova are said to have amounted to 
130,000,000 of French money; besides large con- 
tributions that, according to the practice of orien- 
tal governments, were paid in the fruits of the 
earth. Other proofs of the extraordinary opulence 
and splendour of this monarchy are dispersed in 
Cardonne's work, from which they have been 
chiefly borrowed by later writers. The splendid 
engravings in Murphy's Moorish antiquities of 
Spain illustrate this subject. 



203 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV. 



annexed, according to compact, to the 
crown of Castile. 

It could hardly have been expected 
Expulsion of about the middle of the thir- 
the Moors tecnth ceutury, when the splen- 
loiij: delayed, jj^j conquests of Ferdinand and 
James had planted the Christian banner 
on the three principal Moorish cities, that 
two hundred and fifty years were yet to 
elapse before the rescue of Spain from 
their yoke should be completed. Ambi- 
tion, religious zeal, national enmity, could 
not be supposed to pause in a career 
which now seemed to be obstructed by 
2uch moderate difficulties ; but we find, 
on the contrary, the exertions of the 
Spaniards begin from this time to relax, 
and their acquisitions of territory to be- 
come more slow. One of the causes, 
undoubtedly, that produced this unex- 
pected protraction of the contest, was 
the superior means of resistance which 
the Moors found in retreating. Their 
population, spread originally over the 
whole of Spain, was now condensed, and, 
if I may so say, become no further com- 
pressible, in a single province. It had 
been mingled, in the northern and central 
parts, with the Mozarabic Christians, 
their subjects and tributaries, not perhaps 
treated with much injustice, yet naturally 
and irremediably their enemies. Toledo 
and Saragosa, when they fell under a 
Christian sovereign, were full of these 
inferior Christians, whose long inter- 
course with their masters has infused the 
tones and dialect of Arabia into the lan- 
guage of Castile.* But in the twelfth 
century, the Moors, exasperated by de- 
feat, and jealous of secret disaffection, 
began to persecute their Christian sub- 
jects, till they renounced or fled for their 
religion ; so that, in the southern prov- 
inces, scarcely any professors of Chris- 
tianity were left at the time of Ferdi- 
nand's invasion. An equally severe pol- 
icy was adopted on the other side. The 
Moors had been permitted to dwell in Sa- 
ragosa, as the Christians had dwelt be- 
fore, subjects, not slaves ; but, on the cap- 
ture of Seville, they were entirely ex- 
pelled, and new settlers invited from 
every part of Spain. The strong fortified 
towns of Andalusia, such as Gibraltar, 
Algeziras, Tariffa, maintained also a more 
formidable resistance than had been ex- 
perienced in Castile ; they cost tedious 
sieges, were sometimes recovered by the 
enemy, and were always liable to his at- 
tacks. But the great protection of the 
Spanish Mahometans was found in the 

* Mariana, 1. xi., c. 1. Gibbon, c. 51. 



alliance and ready aid of their kindred 
beyond the Straits. Accustomed to hear 
of the African Moors only as pirates, we 
cannot easily conceive the powerful dy- 
nasties, the warlike chiefs, the vast ar- 
mies, which for seven or eight centuries 
illustrate the annals of that people. Their 
assistance was always afforded to the 
true believers in Spain, though their am- 
bition was generally dreaded by those 
who stood in need of their valour.* 

Probably, however, the kings of Gra- 
nada were most indebted to the indolence 
which gradually became characteristic of 
their enemies. By the cession of Murcia 
to Castile, the kingdom of Aragon shut 
itself out from the possibility of extend- 
ing those conquests which had ennobled 
her earlier sovereigns ; and their succes- 
sors, not less ambitious and enterprising, 
diverted their attention towards objects 
beyond the peninsula. The Castihan, 
patient and undesponding in bad success, 
loses his energy as the pressure becomes 
less heavy, and puts no ordinary evil in 
comparison with the exertions by which 
it must be removed. The greater part 
of his country freed by his arms, he was 
content to leave the enemy in a single 
province, rather than undergo the labour 
of making his triumph complete. 

[A. D. 1252.] If a similar spirit of 
insubordination had not been 
found compatible in earlier ages 
with the aggrandizement of the Castilian 
monarchy, we might ascribe its want of 
splendid successes against the Moors to 
the continued rebellions which disturbed 
that government for more than a century 
after the death of Ferdinand III. His 
son, Alfonso X., might justly acquire the 
surname of Wise for his general profi- 
ciency in learning, and especially in as- 
tronomical science ; if these attainments 
deserved praise in a king, who was inca- 
pable of preserving his subjects in their 
duty. As a legislator, Alfonso, by his 
code of the Siete Partidas, sacrificed the 
ecclesiastical rights of his crown to the 
usurpation of Rome ;f and his philosophy 
sunk below the level of ordinary pru- 
dence, when he permitted the phantom 
of an imperial crown in Germany to se- 
duce his hopes for almost twenty years. 
For the sake of such an illusion he would 
even have withdrawn himselt from Cas- 
tile, if the states had not remonstrated 
against an expedition that would proba- 
bly have cost him the kingdom. In the 
latter years of his turbulent reign, Al- 



* Cardonne, t. ii. and lii., passim. 

t Marina, Ensayo Histoiico-Critico, p. 272, &c 



Chap. IV.] 



SPAIN. 



203 



fanso had to contend agauist his son. 
The right of representation was hitherto 
unknown in Castile, which had borrowed 
little from the customs of feudal nations. 
By the received law of succession, the 
nearer was always preferred to the more 
remote, the son to the grandson. Al- 
fonso X. had established the different 
maxim of representation by his code of 
the Siete Partidas, the authority of 
which, however, was not universally ac- 
knowledged. The question soon came 
to an issue, on the death of his elder son 
Ferdinand, leaving two male children. 
Sancho, their uncle, asserted his claim, 
founded upon the ancient Castihan right 
of succession ; and this, chiefly no doubt 
through fear of arms, though it did not 
want plausible arguments, was ratified by 
an assembly of the cortes, and secured, 
notwithstanding the king's reluctance, 
by the courage of Sancho. But the de- 
scendants of Ferdinand, generally called 
the infants of La Cerda, by the protection 
of France, to whose royal family they 
were closely allied, and of Aragon, always 
prompt to interfere in the disputes of a 
rival people, continued to assert their 
pretensions for more than half a century, 
and, though they were not very success- 
ful, did not fail to aggravate the troubles 
of their country. 

The annals of Sancho IV. and his 
Cvii dis two immediate successors, Fer- 
tu7banc'es dinaiid IV. and Alfonso XL, pre- 
ofCastiie. gent a series of unhappy and 
dishonourable civil dissensions with too 
Baneho IV. much rapidity to be remem- 
1284. bered or even understood. Al- 
w'Ims"' though the Castilian nobility 
Alfonso XI. had no pretence to the original 
1312- independence of the French 
peers, or to the liberties of feudal tenure, 
they assumed the same privilege of re- 
belling upon any provocation from their 
sovereign. When such occurred, they 
seem to have been permitted, by legal 
custom, to renounce their allegiance by 
a solemn instrument, which exempted 
them from the penalties of treason.* A 
very few families composed an oligarchy, 
the worst and most ruinous condition of 
political society, alternately the favourites 
and ministers of the prince, or in arms 
against him. If unable to protect them- 
selves in their walled towns, and by the 
aid of their faction, these Christian pa- 
triots retired to Aragon or Granada, and 
excited a hostile power against their 
country and perhaps their religion. Noth- 
ing is more common in the Castilian his- 



» Mariana,!, xiii., c. 11. 



tory than instances of such defection. 
Mariana remarks coolly of the family of 
Castro, that they were much in the habit 
of revolting to the Moors.* This house 
and that of Lara were at one time the 
great rivals for power; but from the 
time of Alfonso X. the former seems to 
have declined, and the sole family that 
came in competition with the Laras du- 
ring the tempestuous period that followed 
was that of Haro, which possessed the 
lordship of Biscay by an hereditary title. 
The evils of a weak government were 
aggravated by the unfortunate circum- 
sfances in which Ferdinand IV. and Al- 
fonso XL ascended the throne; both 
minors, with a disputed regency, and the 
interval too short to give ambitious spir- 
its leisure to subside. There is, indeed, 
some apology for the conduct of the 
Laras and Haros in the character of their 
sovereigns, who had but one favourite 
method of avenging a dissembled inju- 
ry, or anticipating a suspected treason. 
Sancho IV. assassinates Don Lope Haro 
in his palace at Valladolid. Alfonso XL 
invites to court the infant Don Juan, his 
first cousin, and commits a similar vio- 
lence. Such crimes may be found in 
the history of other countries, but they 
were nowhere so usual as in Spain, 
which was far behind France, England, 
and even Germany, in civihzation. 

[A. D. 1350.] But whatever violence 
and arbitrary spirit might be im- Peter the 
puted to Sancho and Alfonso, *^^"«'- 
was forgotten in the unexampled tyranny 
of Peter the Cruel. A suspicion is fre- 
quently intimated by Mariana, which 
seems in more modern times to have 
gained credit, that party malevolence has 
at least grossly exaggerated the enormi- 
ties of this prince. t It is difficult, how- 

* Alvarus Castrius patria aliquanto antea, uti 
tnoris erat, renunciata.— Castria gens per haec 
tempora ad Mauros saepe defecisse visa est, 1. xii., 
c. 12. See also chapters 17 and 19. 

t There is in general room enough for skepti- 
cism as to the characters of men who are only 
known to us through their enemies. History is 
full of calumnies, and of calumnies that can never 
be effaced. But I really see no ground for thinking 
charitably of Peter the Cruel.— Froissart, part i., 
c. 230, and Matteo Villani (in Script. Rerum 
Italic, t. xiv., p. 43), the latter of whom died be- 
fore the rebellion of Henry of Trastamare, speak 
of him much in the same terms as the Spanish 
historians. And why should Ayala be doubted, 
when he gives a long list of murders committed in 
the face of day, within the recollection of many 
persons living when he wrote .' There may be a 
question whether Richard III. smothered his neph- 
ews in the tower; but nobody can dispute that 
Henry VIII. cut off Anna Biillen's head. 

The passage from Matteo ViUani above men- 
tioned is as follows :— Comincio aspramente a se 



204 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 17 



ever, to believe that a number of atro- 
cious acts, unconnected with each other, 
and generally notorious enough in their 
circumstances, have been ascribed to any 
innocent man. The history of his reign, 
chiefly derived, it is admitted, from the 
pen of an inveterate enemy, Lope de 
Ayala, charges him with the murder of 
his wife, Blanche of Bourbon, most of his 
brothers and sisters, with Eleanor Gus- 
man their mother, many Castilian nobles, 
and multitudes of the commonalty; be- 
sides continual outrages of licentious- 
ness, and especially a pretended mar- 
riage with a noble lady of the Castrian 
family. At length a rebellion was head- 
ed by his illegitimate brother, Henry, 
count of Trastamare, with the assistance 
of Aragon and Portugal. This, however, 
would probably have failed of dethroning 
Peter, a resolute prince, and certainly 
not destitute of many faithful supporters, 
if Henry had not invoked the more pow- 
erful succour of Bertrand du Guesclin, 
and the companies of adventure, who, 
after the pacification between France and 
England, had lost the occupation of war, 
and retained only that of plunder. With 
mercenaries so disciplined it was in vain 
for Peter to contend; but, abandoning 
Spain for a moment, he had recourse 
to a more powerful weapon from the 
same armory. Edward the Black Prince, 
then resident at Bourdeaux, was induced, 
by the promise of Biscay, to enter Spain 
as the ally of Castile [A. D. 1367] ; and 
at the great battle of Navarette he con- 
tinued lord of the ascendant over those 
who had so often already been foiled by 
his prowess. Du Guesclin was made 
prisoner, Henry fled to Aragon, and Peter 
remounted the throne. But a second 
revolution was at hand : the Black Prince, 
whom he had ungratefully off'ended, with- 
drew into Guienne ; and he lost his king- 
dom and life in a second short contest 
with his brother. 

A more fortunate period began with 

House of the accession of Henry. His 

Trastamare. own rcignwas hardly disturbed 

^^*i36s"" ^y ^"y rebellion; and though 

John I.' his successors, John I. and 

'379. Henry HI., were not altogether 

1390. ' so unmolested, especially the 

latter, who ascended the throne 

m his minority ; yet the troubles of their 

time were slight in comparison with those 

formerly excited by the houses of Lara 

far ubbidire, perchfe temendo de' siioi baroni, trovo 
modo di far infamare I'uno I'altro, e prendendo ca- 
gione, gli comincio ad uccidere con le sue mani. 
E in brieve tempo ne fece rnorire 25, e tre suoi 
fratelli fece morire, &c. 



and Haro, both of which were now hap- 
pily extinct. Though Henry II. 's illegit- 
imacy left him no title but popular choice, 
his queen was sole representative of the 
Cerdas, the ofi'spring, as has been men- 
tioned above, of SanchoIV.'s elder broth- 
er, and by the extinction of the younger 
branch, unquestioned heiress of the royal 
line. Some years afterward, by the 
marriage of Henry HI. with Catharine, 
daughter of John of Gaunt and of Con- 
stance, an illegitimate child of Peter the 
Cruel, her pretensions, such as they were, 
became merged in the crown. 

[A. D. 1406.] No kingdom could be 
worse prepared to meet the disorders of 
a minority than Castile, and in none did 
the circumstance so frequently recur. 
John II. was but fourteen months old at 
his accession ; and, but for the disinter- 
estedness of his uncle Ferdinand, the no- 
bility would have been inclined to avert 
the danger by placing that prince upon 
the throne. In this instance, however, 
Castile suffered less from faction during 
the infancy of her sovereign than in his 
maturity. The queen dowager, at first 
jointly with Ferdinand, and solely after 
his accession to the crown of Aragon, 
administered the government with credit. 
Fifty years had elapsed at her death, in 
1418, since the elevation of the house of 
Trastamare, who had entitled themselves 
to public affection by conforming them- 
selves more strictly than their predeces- 
sors to the constitutional laws of Castile, 
which were never so well established as 
during this period. In external affairs 
their reigns were not what is considered 
as glorious. [A. D. 1385.] They were 
generally at peace with Aragon and Gra- 
nada, but one memorable defeat by the 
Portuguese at Aljubarrota disgraces the 
annals of John I., whose cause was as 
unjust as his arms were unsuccessful. 
This comparatively golden period ceases 
at the majority of John II. His reign 
was filled up by a series of conspiracies 
and civil wars, headed by his cousins, 
John and Henry, the infants of Aragon, 
who enjoyed very extensive territories in 
Castile by the testament of their father 
Ferdinand. Their brother, the King of 
Aragon, frequently lent the assistance of 
his arms. John himself, the elder of these 
two princes, by marriage with the heiress 
of the kingdom of Navarre, stood in a 
double relation to Castile, as a neighbour- 
ing sovereign, and as a member of the 
native oligarchy. These con- po^er and 
spiracies were all ostensibly di- fail ofAi- 
rccted against the favourite of ]^^°^^'^ 
John II., Alvaro de Luna, who 



Chap. IV.] 



SPAIN. 



205 



retained for five-and-thirty years an abso- 
lute control over his feeble master. The 
adverse faction naturally ascribed to this 
powerful minister every criminal inten- 
tion and all public mischiefs. He was 
certainly not more scrupulous than the 
generality of statesmen, and appears to 
have been rapacious in accumulating 
wealth. But there was an energy and 
courage about Alvaro de Luna which dis- 
tinguish him from the cowardly syco- 
phants who usually rise by the favour of 
weak princes ; and Castile probably would 
not have been happier under the admin- 
istration of his enemies. His fate is 
among the memorable lessons of history. 
After a life of troubles endured for the 
sake of this favourite, sometimes a fugi- 
tive, sometimes a prisoner, his son head- 
ing rebellions against him, John H. sud- 
denly yielded to an intrigue of the palace, 
and adopted sentiments of dislike towards 
the man he had so long beloved. No 
substantial charge appears to have been 
brought against Alvaro de Luna, except 
that general malversation which it was 
too late for the king to object to him. 
The real cause of John's change of af- 
fection was, most probably, the insupport- 
able restraint which the weak are apt to 
find in that spell of a commanding un- 
derstanding which they dare not break ; 
the torment of living subject to the as- 
cendant of an inferior, which has produ- 
ced so many examples of fickleness in 
sovereigns. That of John H. is not the 
least conspicuous, Alvaro de Luna was 
brought to a summary trial and behead- 
ed ; his estates were confiscated. He 
met his death with the intrepidity of 
Strafford, to whom he seems to have 
borne some resemblance in character. 
John n. did not long survive his min- 

HenrylV ^^^^''' ^^^^^^ ''^ ^'*^'*' ^^^^^ ^ ^^'^'^ 

■ that may be considered as inglo- 
rious, compared with any except that of 
his successor. If the father was not re- 
spected, the son fell completely into con- 
tempt. He had been governed by Pa- 
checo, marquis of Villena, as implicitly as 
John by Alvaro de Luna. This influence 
lasted for some time afterward. But the 
king inclining to transfer his confidence 
to the queen, Joanna of Portugal, and to 
one Bertrand de Gueva, upon whom com- 
mon fame had fixed as her paramour, a 
powerful confederacy of disaffected no- 
bles was formed against the royal author- 
ity. In what degree Henry IV. 's gov- 
ernment had been improvident or oppres- 
sive towards the people, it is hard to de- 
termine. The chiefs of that rebeUion, 
Carillo, archbishop of Toledo, the Admi- 



ral of Castile, a veteran leader of faction, 
and the Marquis of Villena, so lately the 
king's favourite, were undoubtedly actua- 
ted only by selfish ambition and revenge. 
[A. D. 1465.] They deposed Henry in an 
assembly of their faction at Avila, with a 
sort of theatrical pageantry which has 
often been described. But modern his- 
torians, struck by the appearance of judi- 
cial solemnity in this proceeding, are 
sometimes apt to speak of it as a nation- 
al act ; while, on the contrary, it seems 
to have been reprobated by the majority 
of the Castilians as an audacious outrage 
upon a sovereign, who, with many de- 
fects, had not been guilty of any exces- 
sive tyranny. The confederates set up 
Alfonso, the king's brother, and a civil 
war of some duration ensued, in which 
they had the support of Aragon. The 
Queen of Castile had at this time borne a 
daughter, whom the enemies of Henry 
IV., and indeed no small part of his ad- 
herents, were determined to treat as spu- 
rious. Accordingly, after the death of 
Alfonso, his sister Isabel was considered 
as heiress of the kingdom. She might 
have aspired, with the assistance of the 
confederates, to its immediate possession ; 
but, avoiding the odium of a contest with 
her brother, Isabel agreed to a treaty, by 
which the succession was absolutely set- 
tled upon her. [A. D. 1469.] This ar- 
rangement was not long afterward fol- 
low'ed by the union of that princess with 
Ferdinand, son of the King of Aragon. 
This marriage was by no means accept- 
able to a part of the Castilian oligarchy, 
who had preferred a connexion with Por- 
tugal. And as Henry had never lost 
sight of the interests of one whom he 
considered, or pretended to consider, as 
his daughter, he took the first opportuni- 
ty of revoking his forced disposition of 
the crown, and restoring the direct line 
of succession in favour of the Princess 
Joanna. Upon his death, in 1474, the 
right was to be decided by arms. Joan- 
na had on her side the common presump- 
tions of law, the testamentary disposition 
of the late king, the support of Alfonso, 
king of Portugal, to whom she was be- 
trothed, and of several considerable lead- 
ers among the nobility, as the young 
Marquis of Villena, the family of IMendo- 
za, and the Archbishop of Toledo, who, 
charging Ferdinand with ingratitude, had 
quitted a party which he had above all 
men contributed to strengthen. For Isa- 
bella were the general belief of Joanna's 
illegitimacy, the assistance of Aragon, 
the adherence of a majority both among 
the nobles and people, and, more than all, 



206 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV 



the reputation of ability which both she 
and her liusband had deservedly acquired. 
Th" scale, however, was pretty equally 
balanced, till the King of Portugal having 
been defeated at Toro, in 1476, Joanna's 
party discovered their inability to prose- 
cute the war by themselves, and succes- 
sively made their submission to Ferdi- 
nand and Isabella. 

The Castilians always considered 
Constitu- themselves as subject to a legal 
lion of and limited monarchy. For sev- 
Succession ^"'^^ ^S^^ the crown was elect- 
or the ive, as in most nations of Ger- 
crowii. ma.n origin, within the limits of 
one royal family.* In general, of course, 
the public choice fell upon the nearest 
heir; and it became a prevailing usage 
to elect a son during the lifetime of his 
father; till, about the eleventh century, 
a right of hereditary succession was 
clearly established. But the form of 
recognising the heir-apparent's title in 
an assembly of the cortes has subsisted 
until our own time.f 

In the original Gothic monarchy of 
National Spain, civil as well as ecclesias- 
counoiis. ^Iq^i affairs were decided in na- 
tional councils, the acts of many of which 
are still extant, and have been pubhshed 
in ecclesiastical collections. To these 
assemblies the dukes and other provincial 
governors, and in general the principal 
individuals of the realm, were summoned 
along with spiritual persons. This double 
aristocracy of church and state continued 
to form the great council of advice and 
consent in the first ages of the new king- 
doms of Leon and Castile. The prelates 
and nobility, or rather some of the more 
distinguished nobility, appear to have 
concurred in all general measures of le- 
gislation, as we infer from the preamble 
of their statutes. It would be against 
analogy, as well as without evidence, to 
suppose that any representation of the 
commons had been formed in the earlier 



* Defuncto in pace principe, primates totius reg- 
ni una cum sacerdotibus successorem regni con- 
cilio communi constituant. — Concil. Toletan. IV., 
c. 75, apud Marina, Teoria de las Cortes, t. ii., p. 
2. This important work, by the author of the En- 
sayo Historico-Critico, quoted above, contains an 
ample digest of the parliamentary law of Castile, 
drawn from original, and, in a great degree, un- 
published records. I have been favoured with the 
use of a copy, from which I am the more disposed 
to make extracts, as the book is likely, through its 
liberal principles, to become almost as scarce in 
Spain as in England. Marina's former work (the 
Ensayo Hist. Crit.) furnishes a series of testimo- 
nies (c. 66) to the elective character of the monar- 
chy from Pelayo downwards to the twelfth cen- 
tury. 

t Teoria de las Cortes, t. ii., p. 7. 



period of the monarchy. In the pream 
ble of laws passed in 1020, and at several 
subsequent times during that and the en- 
suing century, we find only the bishops 
and magnats recited as pres- Admission 
ent. According to the General or deputies 
Chronicle of Spain, deputies f™"' '"^ns. 
from the Castilian towns formed a part 
of cortes in 1169 ; a date not to be reject- 
ed as incompatible with their absence in 
1178. However, in 1188, the first year 
of the reign of Alfonso IX., they are ex- 
pressly mentioned ; and from that era 
were constant and necessary parts of 
those general assemblies.* It has been 
seen already that the corporate towns, 
or districts of Castile, had early acquired 
considerable importance; arising less 
from commercial wealth, to which the 
towns of other kingdoms were indebted 
for their liberties, than from their utility 
in keeping up a military organization 
among the people. To this they prob- 
ably owe their early reception into the 
cortes as integrant portions of the legis- 
lature, since we do not read that taxes 
were frequently demanded till the extrav- 
agance of later kings, and their aliena- 
tion of the domain, compelled them to 
have recourse to the national represent- 
atives. 

Every chief town of a concejo or cor- 
poration ought, perhaps, by the constitu- 
tion of Castile, to have received its regu- 
lar writ for the election of deputies to 
cortes. t But there does not appear to 
have been, in the best times, any uniform 
practice in this respect. At the cortes 
of Burgos, in 1315, we find one hun- 
dred and ninety-two representatives from 
more than ninety towns ; at those of 
Madrid, in 1391, one hundred and twenty- 
six were sent from fifty towns ; and the 
latter list contains names of several pla- 
ces which do not appear in the former.J 
No deputies were present from the king- 
dom of Leon in the cortes of Alcala in 
1348, where, among many important en- 
actments, the code of the Siete Partidas 
first obtained a legislative recognition.^ 



* Ensayo Hist. Crit., p. 77. Teoria de las Cor- 
tes, t. i., p. 66. Marina seems to have somewhat 
changed his opinion since the publication of the 
former work, where he inclines to assert, that the 
commons were from the earliest times admitted 
into the legislature. In 1188, the first year of the 
reign of Alfonso iX., we find positive mention of 
la muchedumbre de las cibdades ^ embiados de 
cada cibdat. 

f Teoria de las Cortes, p. 139. 

J Idem, p. 148. Geddes gives a list of one hun 
dred and twenty-seven deputies from forty-eight 
towns to the cortes at Madrid in 1390.— Miscella- 
neous Tracts, vol. iii. 

^ Idem, p. 154. 



Chap, IV. 7 



iSPAIN 



207 



We find, in short, a good deal more irreg- 
ularity than during the same period in 
England, where the number of electing 
boroughs varied pretty considerably at 
every parliament. Yet the cortes of 
Castile did not cease to be a numerous 
body and a fair representation of the peo- 
ple till the reign of John II. The first 
princes of the liouse of Trastamare had 
acted in all points with the advice of their 
cortes. But John II., and still more his 
son, Henry IV., being conscious of their 
own unpopularity, did not venture to meet 
a full assembly of the nation. Their 
writs were directed only to certain 
towns ; an abuse for which the looseness 
of preceding usage had given a pretence.* 
It must be owned that the people bore it 
in general very patiently. Many of the 
corporate towns, empoverished by civil 
■warfare and other causes, were glad to 
save the cost of defraying their deputies' 
expenses. Thus, by the year 1480, only 
seventeen cities had retained privilege of 
representation. A vote was afterward 
added for Granada, and three more in 
later times for Palencia, and the prov- 
inces of Estremadura and Galicia.f It 
might have been easy, perhaps, to redress 
this grievance, while the exclusion was 
yet fresh and recent. But the privileged 
towns, with a mean and preposterous 
selfishness, although their zeal for liberty 
was at its height, could not endure the 
only means of effectually securing it, by a 
restoration of elective franchises to their 
fellow-citizens. The cortes of 1506 as- 
sert, with one of those bold falsifications 
upon which a popular body sometimes 
ventures, that " it is established by some 
laws and by immemorial usage that eigh- 
teen cities of these kingdoms have the 
right of sending deputies to cortes, and 
no more ;" remonstrating against the at- 
tempts made by some other towns to ob- 



* Sepades (says John II. in 1442), que en el 
ayuntamiento que yo fice en la noble villa de Val- 

ladolid los procuradores de ciertas cibdades 

ft villas de mis reynos que per mi mandado fueron 
llamados. This language is repealed as to subse- 
quent meetings, p. 156. 

t The cities which retain their representation in 
cortes, if the present tense may still be used even 
for these ghosts of ancient liberty in Spain, are 
Burgos, Toledo (there was a constant dispute for 
precedence between these two), Leon, Granada, 
Cordova, Murcia, Jaen, Zamora, Tore, Soria, Val- 
ladolid, Salamanca, Segovia, Avila, Madrid, Gua- 
dalaxara, and Cuenca. The representatives of 
these were supposed to vote not only for their im- 
mediate constituents, but for other adjacent towns. 
Thus Toro voted for Palencia and the kingdom of 
Galicia before they obtained separate votes ; Sala- 
manca for most of Estremadura ; Guadalaxara 
for Siguenza and four hundred other towns. — Teo 
ria dejas Cortes, p. 160, 268. 



tain the same privilege, which they re- 
quest may not be conceded. This re- 
monstrance is repeated in 1512.* 

From the reign of Alfonso XI., who 
restrained the government of corporations 
to an oligarchy of magistrates, the right 
of electing members of cortes was con- 
fined to the ruling body, the bailiffs or 
regidores, whose number seldom ex- 
ceeded twenty-four, and whose succes- 
sion was kept up by close election 
among themselves. f The people, there- 
fore, had no direct share in the choice of 
representatives. Experience proved, as 
several instances in these pages will 
show, that even upon this narrow basis 
the deputies of Castile were not deficient 
in zeal for their country and its liberties. 
But it must be confessed that a small 
body of electors is always liable to cor- 
rupt influence and to intimidation. John 
II. and Henry lY. often invaded the free- 
dom of election ; the latter even named 
some of the deputies. t Several energet- 
ic remonstrances were made in cortes 
against this flagrant grievance. LaAvs 
were enacted, and other precautions de- 
vised, to secure the due return of depu- 
ties. In the sixteenth century, the evil 
of course was aggravated. Charles and 
Philip corrupted the members by bri- 
bery.^ Even in 1573 the cortes are bold 
enough to complain, that creatures of 
government were sent thither, " who are 
always held for suspected by the other 
deputies, and cause disagreement among 
them."|| 

There seems to be a considerable ob- 
scurity about the constitution g ■ ■( , 
of the cortes, so far as relates anrt"tempo- 
to the two higher estates, the rai nomiity 
spiritual and temporal nobil- '""^^rtes. 
ity. It is admitted, that down to the lat- 
ter part of the thirteenth century, and 
especia^y before the introduction of 
representatives from the commons, they 
were summoned in considerable num- 
bers. But the writer to whom I must 
almost exclusively refer for the consti- 
tutional history of Castile contends, that, 
from the reign of Sancho lY., they took 
much less share, and retained much less 
influence, in the deliberations of cortes. T[ 
There is a remarkable protest of the 
Archbishop of Toledo in 1295 against the 
acts done in cortes, because neither he 
nor the other prelates had been admitted 
to their discussions, nor given any con- 
sent to their resolutions, althougli such 



* Teoria de las Cortes, p. 161. 
t Idem, p. 86, 197. ' - t Wem, p. 199. 

i) Idem, p. 213. U Idem, p. 202 

^ Idem o. 67. 



208 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV. 



consent was falsely recited in the laws 
enacted therein.* This protestation is 
at least a testimony to the constitutional 
rights of the prelacy, which indeed all 
the early history of Castile, as well as 
the analogy of other governments, con- 
spires to demonstrate. In the fourteenth 
and fifteenth centuries, however, they 
were more and more excluded. None 
of the prelates were summoned to the 
cortes of 1299 and 1301 ; none either of 
the prelates or nobles to those of 1370 
and 1373, of 1480 and 1505. In all the 
latter cases, indeed, such members of 
both orders as happened to be present in 
the court attended the cortes ; a fact 
which seems to be established by the 
language of the statutes.! Other instan- 
ces of a similar kind may be adduced. 
Nevertheless, the more usual expression 
in the preamble of laws reciting those 
summoned to, and present at, the cortes, 
though subject to considerable variation, 
seems to imply that all the three estates 
were, at least nominally and according to 
legitimate forms, constituent members 
of the national assembly. And a chron- 
icle mentions, under the year 1406, the 
nobility and clergy as deliberating separ- 
ately, and with some difference of judg- 
ment, from the deputies of the com- 
mons. | A theory, indeed, which should 

* Protestamos que desde aqui venimos non fue- 
mos llamados a consejo, ni a los tratados sobre 
los fechos del reyno, ni sobre las otras cosas que 
hi fueren tractadas et fechas, et sennaladamente 
sobre los fechos de los concejos de las hermanda- 
des, et de las peticiones que fueron fechas de su 
parte, et sobre los otorgamentos que les ficieron, et 
sobre los previlegios que por esta nazon les fueron 
otorgados ; mas ante fuemos ende apartados et es- 
trannados et secados expresamente nos et los otros 
perlados et ricos homes et los fijosdalgo ; et non 
fue hi cosa fecha con nuestro consejo. OtrosI pro- 
testamos por razon de aquello que dice en los pre- 
vilegios que les otorgaron, que fueren los perlados 
llamados, et que eran otorgados de consentimiento 
et de voluntad dellos, que non fuemos hi presentes 
ni llamados nin fue fecho con nuestra voluntad, nin 
consenliemos, nin consentimos en ellos, &c.,p. 72. 

t Teoria de las Cortes, p. 74. 

t T. ii., p. 234. Marina is influenced by a preju- 
dice in favour of the abortive Spanish constitution 
of 1812, which excluded the temporal and spirit- 
ual aristocracy from a place in the legislature, to 
imagine a similar form of government in ancient 
times. But his ovs'n work furnishes abundant rea- 
sons, if I am not mistaken, to modify this opinion 
very essentially. A few out of many instances may 
be adduced from the enacting words of statutes, 
which we consider in England as good evidences 
to establish a constitutional theory. Sepades que 
yo hobe mio acuerdo e mio consejo con mios her- 
manos e los arzobispos, e los opisbos, e con los ri- 
cos homes de Castella, e de Leon, e con homes 
buenos de las villas de Castella, e de Leon, que 
fueron conmigo en Valladolit, sobre muchas cosas, 
&c. (Alfonso X. in 1258.) Mandamos enviar 11a- 
piar por cartas del rei e nuestras a los infantes e 



exclude the great territorial aristocracy 
from their place in cortes, would expose 
the dignity and legislative rights of that 
body to unfavourable inferences. But it 
is manifest, that the king exercised very 
freely a prerogative of calling or omitting 
persons of both the higher orders at his 
discretion. The bishops were numerous, 
and many of their sees not rich ; while 
the same objections of inconvenience 
applied perhaps to the ricos hombres, but 
far more forcibly to the lower nobility, 
the hijosdalgo or caballeros. Castile 
never adopted the institution of deputies 
from this order, as in the States General 
of France and some other countries ; 
much less that liberal system of landed 
representation, which forms one of the 
most admirable peculiarities in our own 
constitution. It will be seen hereafter, 
that spiritual, and even temporal peers, 
were summoned by our kings with much 
irregularity ; and the disordered state of 
Castile through almost every reign was 
likely to prevent the establishment of 
any fixed usage in this and most other 
points. 

The primary and most essential char- 
acteristic of a limited monarchy Right of 
is, that money can only be levied ta.\ation. 
upon the people through the consent of 
their representatives. This principle was 
thoroughly established in Castile ; and the 
statutes which enforce it, the remon- 
strances which protest against its viola- 
tion, bear a lively analogy to correspond- 

perlados e ricos homes e infanzones e caballeros e 
homes buenos de las cibdades e de las villas de 
los reynos de Castilia et de Toledo e de Leon e de 
las Estramaduras, e de Gallicia e de las Asturias e 
del Andalusia. (Writ of summons to cortes of 
Burgos in 1315.) Con acuerdo de los perlados ede 
los ricos homes e procuradores de las cibdades e 
villas e logares de los nuestros reynos. (Ordinan- 
ces of Toro in 1371). Estando hi con el el infante 
Don Ferrando, &c., e otros perlados e condes e ri- 
cos homes e otros del consejo del senor rei, e 
otros caballeros e escuderos, e los procuradores de 
las cibdades e villas e logares de sus reynos. (Cortes 
of 1301.) Los tres estados que de ben venir a las 
cortes e ayuntamientossegunt se debe facer e es de 
buena costumbre antigua (Cortes of 1393.) This 
last passage is apparently conclusive to prove, that 
three estates, the superior clergy, the nobility, and 
the commons, were essential members of the Le- 
gislature in Castile, as they were in France and 
England ; and one is astonished to read in Marina 
that no faltaron a ninguna de las formalidades de 
derecho los monarcas quo no tuvieron por oportu- 
no llamar a cortes para semejantes actos ni al clero 
ni a la nobleza ni a las personas singulares de uno 
y otro estado, t. i., p. 69. That great citizen, Jovel- 
lanos, appears to have had much wiser notions of 
the ancient government of his country, as well as 
of the sort of reformation which she wanted, as 
we may infer from passages in his Memoria h sus 
compatriotas, Coruna, 1811, quoted by Marina for 
the purpose of censure. 



Ciup. IV.] 



SPAIN. 



209 



jng circumstances in the history of our 
constitution. The lands of the nobihty 
and clergy were, I believe, always ex- 
empted from direct taxation ; an immu- 
nity which perhaps rendered the attend- 
ance of the members of those estates in 
the cortes less regular. The corporate 
districts or concejos, which, as I have ob- 
served already, differed from the commu- 
nities of France and England by possess- 
ing a large extent of territory, subordinate 
to the principal town, were bound by their 
charter to a stipulated annual payment, 
the price of their franchises, called mo- 
neda forera.* Beyond this sum nothing 
could be demanded without the consent 
of the cortes. Alfonso VIII., in 1 177, ap- 
plied for a subsidy towards carrying on 
the siege of Cuenca. Demands of money 
do not however seem to have been very 
usual before the prodigal i-eign of Alfonso 
X. That prince and his immediate succes- 
sors were not much inclined to respect 
the rights of their subjects ; but they en- 
countered a steady and insuperable re- 
sistance. Ferdinand IV., in 1307, prom- 
ises to raise no money beyond his legal 
and customary dues. A more explicit 
law was enacted by Alfonso XI. in 1328, 
who bound himself not to exact from his 
people, or cause them to pay any tax, 
either partial or general, not hitherto es- 
tablished by law, without the previous 
grant of all the deputies convened to the 
cortes. t This abolition of illegal impo- 
sitions was several times confirmed by 
tlie same prince. The cortes, in 1393, 
having made a grant to Henry III., an- 
nexed this condition, that " since they 
had granted him enough for his present 
necessities, and even to lay up a part for 
a future exigency, he should swear be- 
fore one of the archbishops not to take or 
demand any money, service, or loan, or 
any thing else of the cities and towns, 
nor of individuals belonging to them, on 
any pretence of necessity, until the three 
estates of the kingdom should first be duly 
summoned and assembled in cortes ac- 
cording to ancient usage. And if any 
such letters requiring money have been 
written, that they shall be obeyed, and not 



* Marina, Ensayo Hist. Crit., cap. 158. Teoria 
de las Cortes, t. ii., p. 387. This is expressed 
m one of their fueros, or charters : Liberi et 
ingenui semper maneatis, reddendo mihi et suc- 
cessoribus ineis in unoquoque anno in die Pente- 
costes de unaquaque domo 12 denarios ; et, nisi 
cum bona, voluntate vestra feceritis, nullum alium 
servitium facialis. 

t De los con echar nin mandar pagar pecho de- 
saforado ninguno, especial nin general, en toda mi 
tierra, sin ser Ilamados primeramente a cortes, h 
otorgado per todos los procjradores que hi ve- 
nieren.,p.388. 

o 



complied with.''''* His son, John IT., hav- 
ing violated this constitutional privilege 
on the allegation of a pressing necessity, 
the cortes, in 1420, presented a long re- 
monstrance, couched in very respectful, 
but equally firm language, wherein they 
assert, " the good custom founded in rea- 
son and in justice, that the cities and 
towns of your kingdoms shall not be com- 
pelled to pay taxes, or requisitions, or oth- 
er new tribute, unless your highness order 
it by advice and with the grant of the 
said cities and towns, and of their depu- 
ties for them." And they express their 
apprehension lest this right should be in- 
fringed, because, as they say, " there re- 
mains no other privilege or liberty which 
can be profitable to subjects if this be 
shaken. "t The king gave them as full 
satisfaction as they desired, that his en- 
croachment should not be drawn into 
precedent. Some fresh abuses, during 
the unfortunate reign of Henry IV., pro- 
duced another declaration in equally ex- 
plicit language ; forming part of the sen- 
tence awarded by the arbitrators to whom 
the differences between the king and his 
people had been referred at Medina del 
Campo in 1465.| The Catholic kings, as 
they are eminently called, Ferdinand and 
Isabella, never violated this part of the 
constitution; nor did even Charles I., al- 
though sometimes refused money by the 
cortes, attempt to exact it without their 
consent.^ In the Recopilacion, or code 
of Castilian law, published by Phihp II. 

* Obedecidas e non cumplidas. This expression 
occurs frequently in provisions made against illegal 
acts of the crown ; and is characteristic of the sin- 
gular respect with which the Spaniards alvyays 
thought it right to treat their sovereign, while they 
were resisting the abuses of his authority. 

t La buena costumbre h possession fundada en 
razon e en justicia que las cibdades e villas de 
vuestros reinos tenian de no ser mandado coger 
monedas ^ pedidos nin otro tributo nuevo alguno 
en los vuestros reinos sin que la vuestra seiioria lo 
fagae ordenede consejo e con otorgamiento de las 
cibdades h villas de los vuestros reinos h de sus 
procuradores en su nombre * * * * * no queda 
otro previlegio ni libertad de que los subditos pue- 
dan gozar ni aprovechar quebrantado el sobre 
dicho, t. iii., p. 30. 

t Declaramos h ordenamos, que el dicho seiior 
rei nin los otros reyes que despues del fueren non 
echan nin reparian nin pidan pedidos nin monedas 
en sus reynos, salvo por gran necessidad, h seyendo 
primero accordado con los perlados h grandes de 
sus reynos, e con los otros que a la sazon residieren 
en su consejo, e seyendo para ello Ilamados los 
procuradores de las cibdades e villas de sus reynos, 
que para las tales cosas se suelen e acostumbran 
Uamar h seyendo per los dichos procuradores otor- 
gado el dicho pedimento 6 monedas, t. li., p. 391. 

(} Marina has published two letters from Charles 
to the city of Toledo, in 1542 and 1548, requesting 
them to instruct their deputies to consent to a fur- 
ther grant of money, which they had refused to do 



210 



EUROPE DURING THE MIDDLE AGES. 



LChap. IV. 



we read a positive declaration against ar- 
bitrary imposition of taxes, which re- 
mained unaltered on the face of the stat- 
ute-book till the present age.* The law 
was indeed frequently broken by Philip 
II. ; but the cortes, who retained through- 
out the sixteenth century a degree of 
steadiness and courage truly admirable, 
when we consider their political weak- 
ness, did not cease to remonstrate with 
that suspicious tyrant, and recorded their 
unavailing appeal to the law of Alfonso 
XI., " so ancient and just, and which so 
long time has been used and observed."! 
The free assent of the people by their 
Control of representatives to grants of 
cortes over money was by no means a 
expenditure, ^jere matter of form. It was 
connected with other essential rights, in- 
dispensable to its effectual exercise ; 
those of examining public accounts and 
checking the expenditure. The cortes, 
in the best times at least, were careful to 
grant no money until they were assured 
that what had been already levied on 
their constituents had been properly em- 
ployed. J They refused a subsidy in 1390, 
because they had already given so much, 
and " not knowing how so great a sum 
had been expended, it would be a great 
dishonour and mischief to promise any 
more." In 1406 they stood out a long 
time, and at length gave only half of 
what was demanded.*^ Charles I. at- 
tempted to obtain money, in 1527, from 
the nobihty as well as commons. But 
the former protested, that " their obliga- 
tion was to follow the king in war, 
wherefore to contribute money was to- 

without leave of their constituents. — Teoria de las 
Cortes, t. iii., p. 180, 187. 

* Idem, t. ii., p. 393. 

t En las cortes de ano de 70 y en las de 76 pedi- 
mos a V. m. fuese servide de no poner nuevos ina- 
puestos, rentas, pechos, ni derechos ni otros tribu- 
tos particulares ni generales sin junta del reyno en 
cortes, como esta dispuerto por lei del seiior rei Don 
Alonso y se signified a v. m. el daiio grande que 
con las nuevas rentas habia rescibido el reino, su- 
plicando a v.m. fuese servido de mandarle aliviar y 
descargar, y que en lo de adelante se les hiciesse 
merced de guardar las dichas leyes reales y que no 
se impusiessen nuevas rentas sin su asistencia ; 
pues podria v. m. estar satisfecho de que el reino 
sirve en las cosas necessarias con toda lealtad y 
hasta ahora no se ha proveido lo susodicho ; y el 
reino por la obligacion que tiene a pedir a v. m. 
guarde la dicha lei, y que no solamente han cessado 
las necessidades de los subditos y naturales de 
V. m. pero antes crecen de cada dia : vuelve a su- 
plicar a v. m. sea servido concederle lo susodicho, 
y que las nuevas rentas, pechos y derechoo se 
quiten, y que de aqui adelante se guarde la dicha 
lei del seiior rei don Alonso, coino tan antigua y 
justa y que tanto tiempo se us6 y guard6, p. 395. 
This petition was in 1579. 

X Marina, t. ii., p. 404, 406. ^ Ibid., p. 409. 



tally against their privilege, and for that 
reason they could not acquiesce in his 
majesty's request."* The commons also 
refused upon this occasion. In 1538, on 
a similar proposition, the superior and 
lower nobility (los grandes y caballeros) 
" begged with all humility that they 
might never hear any more of that mat- 
ter."! 

The contributions granted by cortes 
were assessed and collected by respect- 
able individuals (hombres buenos) of the 
several towns and villages.^ This repar- 
tition, as the French call it, of direct tax- 
es, is a matter of the highest importance 
in those countries where they are impo- 
sed by means of a gross assessment on a 
district. The produce was paid to the 
royal council. It could not be applied to 
any other purpose than that to which the 
tax had been appropriated. Thus the 
cortes of Segovia, in 1407, granted a sub- 
sidy for the war against Granada, on con- 
dition " that it should not be laid out on 
any other service except this war ;" which 
they requested the queen and Ferdinand, 
both regents in John II. 's minority, to 
confirm by oath. Part, however, of the 
money remained unexpended ; Ferdinand 
wished to apply it to his own object of 
procuring the crown of Aragon ; but the 
queen first obtained not only a release 
from her oath by the pope, but the con- 
sent of the cortes. They continued to 
insist upon this appropriation, though in- 
effectually, under the reign of Charles I.^ 

The cortes did not consider it beyond 
the line of theirduty, notwithstanding the 
respectful manner in which they always 
addressed the sovereign, to remonstrate 
against profuse expenditure even in his 
own household. They told Alfonso X., 
in 1258, in the homely style of that age, 
that they thought it fitting that the king 
and his wife should eat at the rate of a 
hundred and fifty maravedis a day, and no 
more ; and that the king should order his 
attendants to eat more moderately than 
they did. II They remonstrated more for- 
cibly against the prodigality of John II. 
Even in 1559, they spoke with an un- 
daunted Castilian spirit to Philip II. ; 
" Sir, the expenses of your royal estab- 
lishment and household are much increas- 
ed ; and we conceive it would much re- 
dound to the good of these kingdoms, 
that your majesty should direct them to 



* Pero que contribuir a la guerra con ciertas 
sumas era totalmente opuesto a sus previlegios, h 
asi que no podrian acomodarse a lo que s. m. tie 
seaba, p. 411. 

t Marina, t. ii., p. ^U t Ibid., p. 398. 

^ Ibid., p. 412. II Ibid., p. 417. 



CftAP. IV.] 



SPAIN. 



211 



be lowered, both as a relief to your wants, 
and that all the great men and other sub- 
jects of your majesty may take example 
therefrom, to restrain the great disorder 
and excess they commit in that respect."* 

The forms of a Castiiian cortes were 
Forms of analogous to those of an English 
the cori«3. parliament in the fourteenth cen- 
tury. They were summoned by a \vrit 
almost exactly coincident in expression 
with that in use among us.f The session 
was opened by a speech from the chan- 
cellor or other chief officer of the court. 
The deputies were invited to consider 
certain special business, and commonly 
to grant money.| After the principal af- 
fairs were despatched, they conferred to- 
gether, and having examined the instruc- 
tions of their respective constituents, 
drew up a schedule of petitions. These 
were duly answered one by one, and from 
the petition and answer, if favourable, 
laws were afterward drawn up, where the 
matter required a new law, or promises 
of redress were given, if the petition re- 
lated to an abuse or grievance. In the 
struggling condition of Spanish liberty 
under Charles I., the crown began to neg- 
lect answering tlie petitions of cortes, or 
to use unsatisfactory generalities of ex- 
pression. This gave rise to many remon- 
strances. The deputies insisted, in 1523, 
on having answers before they granted 
money. They repeated the same conten- 
tion in 1525, and obtained a general law, 
inserted in the Recopilacion, enacting 
that the king should answer all their pe- 
titions before he dissolved the assembly.^ 
This, however, was disregarded as before ; 
but the cortes, whose intrepid honesty, 
under Philip II. so often attracts our ad- 
miration, continued, as late as 1586, to 
appeal to the written statute, and lament 
its violation. II 

According to the ancient fundamental 
Right of constitution of Castile, the king 
cortes in did not legislate for his subjects 
legislation, ^ithout their conseut. The code 
of the Visigoths, called in Spain the Fuero 
Jusgo, was enacted in public councils, as 
were also the laws of the early kings of 
Leon,T[ which appears by the reciting 

* Seiihor, los gastos de vuestro real estado y 
mesa son muy crescidos, y entendemos que con- 
vernia mucho al bien Je estos reinos que v. m. los 
mandasse moderar asi para algun remedio de sus 
necessidades coino para que de v. m. tomen egem- 
plo totos los grandes y caballeros y otros subditos 
de V. m. en la gran desorden y excesses que hacen 
en las cosas sobredichas. — Marina, p. 437. 

f Ibid., t. i., p. 175 ; t. iii., p. 103. 

t Ibid., p. 278. ^ Ibid., p. 301. 

II Ibid., p. 288-304. 

il Ibid., t. ii., p. 202. The acts of the cortes 
02 



words of their preambles. This consent 
was originally given only by the higher 
estates, who might be considered, in a 
large sense, as representing the nation, 
though not chosen by it ; but from the 
end of the twelfth century, by the elect- 
ed deputies of the commons in cortes. 
The laws of Alfonso X., in 1258, those of 
the same prince in 1274, and many oth- 
ers in subsequent times, are declared to 
be made with the consent (con acuerdo) 
of the several orders of the kingdom. 
More commonly, indeed, the preamble of 
Castiiian statutes only recites their ad- 
vice (consejo) ; but I do not know that any 
stress is to be laid on this circumstance. 
The laws of the Siete Partidas, com- 
piled by Alfonso X., did not obtain any 
direct sanction till the famous cortes of 
Alcala, in 1348, when they were confirm- 
ed along with several others, forming al- 
together the basis of the statute law of 
Spain.* Whether they were in fact re- 
ceived before that time, has been a mat- 
ter controverted among Spanish antiqua- 
ries ; and upon the question of their legal 
validity at the time of their promulgation, 
depends an important point in Castiiian 
history, the disputed right of succession 
between Sancho IV. and the infants of La 
Cerda ; the former claiming under the an- 
cient customary law, the latter under the 
new dispositions of the Siete Partidas. 
If the king could not legally change the 
established laws without consent of his 
cortes, as seems most probable, the right 
of representative succession did not ex- 
ist in favour of his grandchildren, and 
Sancho IV. cannot be considered as an 
usurper. 

It appears upon the whole to have been 
a constitutional principle, that laws could 
neither be made nor annulled except in 
cortes. In 1506, this is claimed by the 
deputies as an established right.f John 



of Leon in 1020 run thus : omnes pontifices et ab- 
bates et optimates regni Hispanis jussu ipsius re- 
gis talia decretadecrevimusquae firmiter teneantur 
futuris temporibus. So those of Salamanca in 
1178: Ego rex Fernandus inter castera quse cum 
episcopis et abbatibus regni nostri et quamplurimis 
aliis religiosis, cum comitibus terrarum et principi- 
bus et rectonbus provmciarum, toto posse tenenda 
statuimus apud Salamancain. 

* Ensayo Hist. Crit., p. 353. Teoria de las Cor- 
tes, t. ii., p. 77. Marina seems to have changed his 
opinion between the publication of these two works, 
in the former of which he contends for the previous 
authority of the Siete Partidas, and in favour of 
the infants of La Cerda. 

t Los reyes establicieron que cuando habiessen 
de hacer leyes, para que fuessen provechosas a 
sus reynos y cada provincias fuesen proveidas, se 
llamasen cortes y procuradores que entendiesen ea 
ellas y per esto se establecio lei que no se hiciesen 



212 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IT. 



the First had long before admitted, that 
what was done by cortes and general as- 
semblies could not be undone by letters 
missive, but by such cortes and assem- 
blies alone.* For the kings of Castile 
had adopted the English practicCj of dis- 
pensing with statutes by a non obstante 
clause in their grants. But the cortes 
remonstrated more steadily against this 
abuse than our own parliament, who suf- 
fered it to remain in a certain degree till 
the revolution. It was several times en- 
acted upon their petition, especially by 
an explicit statute of Henry II., that 
grants and letters patent dispensing with 
statutes should not be obeyed. f Never- 
theless John II., trusting to force or the 
servility of the judges, had the assurance 
to dispense explicitly with this very law. J 
The cortes of Valladolid, in 1442, obtain- 
ed fresh promises and enactments against 
such an abuse. Philip I. and Charles I. 
began to legislate without asking the 
consent of cortes ; this grew much worse 
imder Phihp II., and reached its height 
under his successors, who entirely abol- 
ished all constitutional privileges.^ In 
1555, we find a petition that laws made 
in cortes should be revoked nowhere else. 
The reply was such as became that age : 
"To this we answer, that we bliall do 
what best suits our government." But 
even in 1619, and still afterward, the pa- 
triot representatives of Castile contin- 
ued to lift an unavailing voice against il- 
legal ordinances, though in the form of 
very humble petition ; perhaps the latest 
testimonies to the expiring liberties of 
their country. || The denial of exclusive 
legislative authority to the crown must, 
however, be understood to admit the le- 
gality of particular ordinances, designed 
to strengthen the king's executive gov- 
ernment.^ These, no doubt, like the roy- 
al proclamations in England, extended 
sometimes very far, and subjected the 
people to a sort of arbitrary coercion 
much beyond what our enlightened no- 
tions of freedom would consider as rec- 
oncileable to it. But in the middle ages, 
such temporary commands and prohibi- 
tions were not reckoned strictly legisla- 

ni renovasen leyes sino en cortes. — Teoria de las 
Cortes, t. ii., p. 218. 

* Lo que es fecho por cortes h por ayuntamien- 
tos que non se pueda disfacer por las tales cartas, 
salvo por ayuntamientos h cortes, p. 215. 

t Idem, p. 215. t Idem, p. 216 ; t. iii., p. 40. 

() Idem, t. ii., p. 218. 

Il Ha suplicado el reino a v. m. no se promulguen 
nuevas leyes, ni en todo ni en parte las antiguas se 
alteren sin que sea por cortes . . . . y por ser de tan- 
ta importancia vuelve el remo a suplicarlo humil- 
Biente a v. m., p. 220. 

% Idem, p. 207. 



tive, and passed, perhaps rightly, for in- 
evitable consequences of a scanty code, 
and short sessions of the national council. 

The kings were obliged to swear to the 
observance of laws enacted in cortes, be- 
sides their general coronation oath to 
keep the laws and preserve the liberties 
of their people. Of this we find several 
instances from the middle of the thir- 
teenth century ; and the practice contin- 
ued till the time of John II., who, in 1433, 
on being requested to swear to the laws 
then enacted, answered, that he intended 
to maintain them, and consequently no 
oath was necessary ; an evasion, in which 
the cortes seem unaccountably to have 
acquiesced.* The guardians of Alfonso 
XI. not only swore to observe all that 
had been agreed on at Burgos in 1315, 
but consented that, if any one of them 
did not keep his oath, the people should 
no longer be obliged to regard or obey 
him as regent.f 

It was customary to assemble the cor- 
tes of Castile for many purposes, qj^^^ 
besides those of granting money n^us 
and concurring in legislation. They ""^ "'^ 
were summoned in every reign to 
acknowledge and confirm the succession 
of the heir apparent ; and, upon his acces- 
sion, to swear allegiance. | These acts 
were however little more than formal, 
and accordingly have been preserved for 
the sake of parade, after all the real dig- 
nity of the cortes was annihilated. In the 
fourteenth and fifteenth centuries, they 
claimed and exercised far more ample 
powers than our own parliament ever 
enjoyed. They assumed the right, when 
questions of regency occurred, to limit 
the prerogative, as well as to designate 
the persons who were to use it.^ And 
the frequent minorities of Castilian kings, 
which were unfavourable enough to tran- 
quillity and subordination, served to con- 
firm these parliamentary privileges. The 
cortes were usually consulted upon all 
material business. A law of Alfonso XL, 
in 1328, printed in the Recopilacion, or 
code published by Philip II., declares, 
" Since, in the arduous affairs of our king- 
dom, the counsel of our natural subjects 
is necessary, especially of the deputies 
from our cities and towns, therefore we 
ordain and command that on such great 
occasions the cortes shall be assembled, 
and counsel shall be taken of the three 
estates of our kingdoms, as the kings our 
forefathers have been used to do."|| A 
cortes of John IL, in 1419, claimed this 



♦ Teoria de las Cortes, t. i., p. 306. 

+ Id., t. iii., p. 62. $ Id., t. i., p. 33 ; t. ii., 

^ Id., p. 230. 11 Id., t. i., p. 31. 



p. 24. 



Chap. IV.] 



SPAIN. 



213 



right of being consulted in all matters of 
importance, with a warm remonstrance 
against the alleged violation of so whole- 
some a law by the reigning prince ; who 
answered that, in weighty matters, he had 
acted, and would continue to act, in con- 
formity to it.* What should be intended 
by great and weighty affairs, might be 
not at all agreed upon by the two parties ; 
to each of whose interpretations these 
words gave pretty full scope. However, 
the current usage of the monarchy cer- 
tainly permitted much authority in public 
deliberations to the cortes. Among other 
instances, which indeed will continually 
be found in the common civil histories, 
the cortes of Orcano,in 1469, remonstrate 
with Henry IV. for allying himself with 
England rather than France, and give, as 
the first reason of complaint, that, " ac- 
cording to the laws of your kingdom, 
when the kings have any thing of great 
importance in hand, they ought not to 
undertake it without advice and knowl- 
edge of the chief towns and cities of your 
kingdom."! This privilege of general 
interference was asserted, like other an- 
cient rights, under Charles, whom they 
strongly urged, in 1548, not to permit his 
son Philip to depart out of the realm. J 
It is hardly necessary to observe, that in 
such times they had little chance of be- 
ing regarded. 

The kings of Leon and Castile acted, 
Council of during the interval of the cortes, 
Castile, j^y j^g advice of a smaller coun- 
cil, answering, as it seems, almost ex- 
actly to the king's ordinary council in 
England. In early ages, before the in- 
troduction of the commons, it is some- 
times difficult to distinguish this body 
from the general council of the nation ; 
being composed, in fact, of the same class 
of persons, though in smaller numbers. 
A similar difficulty applies to the English 
history. The nature of their proceedings 
seems best to ascertain the distinction. 
All executive acts, including those ordi- 
nances which may appear rather of a le- 
gislative nature, all grants and charters, 
are declared to be with the assent of the 
court (curia), or of the magnats of the 
palace, or of the chiefs or nobles.^ This 
privy council was an essential part of all 



* Teoria de las Cortes, t. i., p. 34. 

t Porque, segiint Ipyes de nuestros reynos, cu- 
ando los reyes han de facer alguna cosa de gran 
importancia, non lo deben facer sin consejo e sabi- 
duria de las cibdades e villas principales devuestros 
reynos. — Idem, t. ii., p. 241. 

t Idem, t. iii., p. 183. 

^ Cum assensu magnatum palatii : Cumconsilio 
curiae meae : Cum consilio et beneplacito omnium 
principium meorum, nullo contradicente nee re- 
clamente, p. 325. 



European monarchies. And, though the 
sovereign might be considered as free to 
call in the advice of whomsoever he 
pleased, yet, in fact, the princes of the 
blood and most powerful nobility had an- 
ciently a constitutional right to be mem- 
bers of such a council ; so that it formed 
a very material check upon his personal 
authority. 

The council underwent several changes, 
in progress of time, which it is not ne- 
cessary to enumerate. It was justly 
deemed an important member of the con- 
stitution, and the cortes showed a lauda- 
ble anxiety to procure its composition in 
such a manner as to form a guarantee 
for the due execution of laws after their 
own dissolution. Several times, espe- 
cially in minorities, they even named its 
members, or a part of them ; and in the 
reigns of Henry III. and John II., they 
obtained the privilege of adding a perma- 
nent deputation, consisting of four per- 
sons, elected out of their own body, an- 
nexed, as it were, to the council, who 
were to continue at the court during the 
interval of cortes, and watch over the due 
observance of the laws.* This deputation 
continued, as an empty formality, in the 
sixteenth century. In the council, the 
king was bound to sit personally three 
days in the week. Their business, which 
included the whole executive govern- 
ment, was distributed with considerable 
accuracy into what might be despatched 
by the council alone, under their own 
seals and signatures, and what required 
the royal seal.f The consent of this 
body was necessary for almost every act 
of the crown, for pensions or grants of 
money, ecclesiastical and political pro- 
motions, and for charters of pardon, the 
easy concession of which was a great 
encouragement to the homicides so usual 
in those ages, and was restrained by 
some of our own laws.| But the coun- 
cil did not exercise any judicial authority, 
if we may believe the well-mformed au- 
thor from whom I have learned these 
particulars ; unlike, in this, to the ordi- 
nary council of the kings of England. It 
was not until the days of Ferdinand and 
Isabella that this, among other innova- 
tions, was introduced.^ 

Civil and criminal justice was adminis- 
tered, in the first instance, by the *,,„;„!„ 
alcaldes, or municipal judges of tration of 
towns; elected within themselves J"*"<=e. 
originally by the community at large, but 
in subsequent times by the governing 

* Teoria de las Cortes, t. ii., p. 346. 

+ Idem, p. 354. t Idem, p. 360, 362, 378. 

^ Idem, p. 375, 379. 



214 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 17. 



body. In other places, a lord possessed 
the right of jurisdiction by grant from the 
crown, not, what we find in countries 
where the feudal system was more thor- 
oughly established, as incident to his 
own territorial superiority. The kings, 
however, began in the thirteenth century 
to appoint judges of their own, called cor- 
regidores, a name which seems to express 
concurrent jurisdiction with rcgidores, or 
ordinary magistrates.* The cortes fre- 
quently remonstrated against this en- 
croachment. Alfonso XI. consented to 
withdraw his judges from all corpora- 
tions by which he had not been requested 
to appoint them.f Some attempts to in- 
terfere with the municipal authorities of 
Toledo produced serious disturbances 
under Henry III. and John II. | Even 
where the king appointed magistrates at 
a city's request, he was bound to select 
them from among the citizens.^ From 
this immediate jurisdiction an appeal lay 
to the adelantado, or governor of the 
province, and from thence to the tribunal 
of royal alcaldes. || The latter, however, 
could not take cognizance of any cause 
depending before the ordinary judges ; a 
contrast to the practice of Aragon, where 
the justiciary's right of evocation (juris 
firma) was considered as a principal safe- 
guard of pubhc liberty. T[ As a court of 
appeal, the royal alcaldes had the su- 
preme jurisdiction. The king could only 
cause their sentence to be revised, but 
neither alter nor revoke it.** They have 
continued to the present day as a criminal 
tribunal ; but civil appeals were trans- 
ferred by the ordinances of Toro in 1371 
to a new court, styled the king's audience, 
which, though deprived under Ferdinand 
and his successors of part of its jurisdic- 
tion, still remains one of the principal ju- 
dicatures in Castile. It 

No people in a half-civilized state of 
... , , society have a full practical se- 

Violent ac- .J . ^ .^ , , - 

tions of curity against particular acts ot 
some kings arbitrary power. They were 
ofCastiie. j^Qj.g common, perhaps, in Cas- 
tile than in any other European monarchy 
which professed to be free. Laws in- 
deed were not wanting to protect men's 
lives and liberties, as well as their prop- 
erties. Ferdinand IV., in 1299, agreed to 
a petition that "justice shall be executed 



♦ AU'onso X. says ; Ningun ome sea osado juz- 
gar pleytos, se no fuere alcalde puesto por el rey. 
— Teoria de las Cortes, fol. 27. This seems an 
encroachment, on the municipal magistrates. 

t Teoria de las Cortes, p. 251. 

X Idem, p. 255. Mariana, 1. xx., c. 13. 

§ Idem, p. 255. |1 Idem, p. 266. 

^ Idem, p. 2C0. ** Idem, p. 287, 304. 

Tt Idem, p. 292-302. 



impartially according to law and right; 
and that no one shall be put to death, or 
imprisoned, or deprived of his posses- 
sions without trial, and that this be bet- 
ter observed than heretofore."* He re- 
newed the same law in 1307. Neverthe- 
less, the most remarkable circumstance 
of this monarch's history was a violation 
of so sacred and apparently so well es- 
tablished a laAV. Two gentlemen having 
been accused of murder, Ferdinand, with- 
out waiting for any process, ordered them 
to instant execution. They summoned 
him with their last words to appear be- 
fore the tribunal of God in thirty days ; 
and his death within the time, which has 
given him the surname of the Summon- 
ed, might, we may hope, deter succeed- 
ing sovereigns from iniquity so flagrant. 
But from the practice of causing their 
enemies to be assassinated, neither law 
nor conscience could withhold them. 
Alfonso XI. was more than once guilty 
of this crime. Yet he too passed an or- 
dinance, in 1325, that no warrant should 
issue for putting any one to death, or 
seizing his property, till he should be 
duly tried by course of law. Henry II. 
repeats the same law in very explicit 
language.! But the civil history of Spain 
displays several violations of it. An ex- 
traordinary prerogative of committing 
murder appears to have been admitted, 
in early times, by several nations who 
did not acknowledge unlimited power in 
their sovereign. | Before any regular 
police was established, a powerful crimi- 
nal might have been secure from all pun- 
ishment, but for a notion, as barbarous 
as any which it served to counteract, 
that he could be lawfully killed by the 
personal mandate of the king. And the 
frequent attendance of sovereigns in their 
courts of judicature might lead men not 
accustomed to consider the indispensable 
necessity of legal forms, to confound an 



* Que mandase facer la justicia en aquellos que la 
merecen comunalmente con fuero e con derecho ; 
e los homes que non scan muertos nin presos nin 
tornados lo que han sin ser oidos por derecho 6 por 
fuero de aquel logar do acaesciere, e que sea guarda- 
do mejor que se guard6 fasta aqui. — Marina, En- 
sayo Hist. Critico, p. 148. 

t Que non mandemos matar nin prender nin lisi- 
ar nin despechar nin tojiiar a alg\ino ninguna cosa 
de lo suyo, sin ser ante llaniado e oido e vencido 
por fuero e por derecho, por querella nin por querel- 
las que a nos fuesen dadas, segunt que esto esta or- 
denado por el rei don Alonso nuestro padre. — Teo- 
ria de las Cortes, t. ii., p. 287. 

% Si quishouunem per jussionem regis vel ducis 
sui occiderit, non requiratur ei, nee sit faidosus, 
quia jussio domini sui fuit, et non potuit conlradi 
cere jussionem. — Leges Bajuvariorum, tit. li., m 
Baluz. Capitularibus. 



Chap. IV.] 



SPAIN. 



215 



act of assassination with the execution 
of justice. 

Though it is very improbable that the 
Conff.iera- nobihty were not considered as 
cies of the essential members of the cortes, 
nobility. j^i^gy cgi-jainly attended in small- 
er numbers than we should expect to find 
from the great legislative and deliberative 
authority of that assembly. This arose 
chiefly from the lawless spirit of that 
martial aristocracy, which placed less 
confidence in the constitutional methods 
of resisting arbitrary encroachment than 
in its own armed combinations.* Such 
confederacies to obtain redress of griev- 
ances by force, of which there were five 
or six remarkable instances, were called 
Hermandad (brotherhood or union), and 
though not so explicitly sanctioned as 
they were by the celebrated Privilege 
of Union in Aragon, found countenance 
in a law of Alfonso X., Avhich cannot be 
deemed so much to have voluntarily em- 
anated from that prince as to be a rec- 
ord of original rights possessed by the 
Castilian nobility. " The duty of sub- 
jects towards their king," he says, " en- 
joins them not to permit him knowingly 
to endanger his salvation, nor to incur 
dishonour and inconvenience in his per- 
son or family, nor to produce mischief to 
liis kingdom. And this may be fulfilled 
in two ways ; one by good advice, show- 
ing him the reason wherefore he ought not 
to act thus ; the other by deeds, seeking 
means to prevent his going on to his 
own ruin, and putting a stop to those 
who give him ill counsel, forasnmch as 
his errors are of worse consequence than 
those of other men, it is the bounden 
duty of subjects to prevent his commit- 
ting them."t To this law the insurgents 
appealed in their coalition against Alva- 
ro de Luna ; and indeed we must confess, 
that however just and admirable the prin- 
ciples which it breathes, so general a 
license of rebellion was not likely to pre- 
serve the tranquillity of a kingdom. The 
deputies of towns, in a cortes of 1445, pe- 
titioned the king to declare that no con- 
struction should be put on this law in- 
consistent with the obedience of subjects 
towards their sovereign; a request to 
which of course he willingly acceded. 

Castile, it will be apparent, bore a 
closer analogy to England in its form of 
civil polity than France or even Aragon. 
But the frequent disorders of its govern- 
ment, and a barbarous state of manners, 
rendered violations of law much more 
continual and flagrant than they were in 



* Teoria de las Cortes, t. ii., p. 465. 
t Ensayo Hint. Cntico, p. 312. 



England under the Plantagenet dynasty 
And besides these practical mischiefs, 
there were two essential defects in the 
constitution of Castile, through which 
perhaps it was ultimately subverted. It 
wanted those two brilliants in the coro- 
net of British liberty, the representation 
of freeholders among the commons, 
and trial by jury. The cortes of Castile 
became a congress of deputies from a 
few cities, public-spirited indeed and m- 
trepid, as we find them in bad times, to 
an eminent degree, but too much limited 
in number, and too unconnected with 
the territorial aristocracy, to maintain a 
just balance against the crown. Yet, 
with every disadvantage, that country 
possessed a liberal form of government, 
and was animated with a noble spirit for 
its defence. Spain, in her late memora- 
ble though short resuscitation, might well 
have gone back to her ancient institu- 
tions, and perfected a scheme of policy 
which the great example of England 
would have shown to be well adapted to 
the security of freedom. What she did, 
or rather attempted instead, I need not 
recall. May her next effort be more 
wisely planned and more happily termi- 
nated!* 

Though the kingdom of Aragon was 
very inferior in extent to tliat of Affairs of 
Castile, yet the advantages of a Aragon. 
better form of government and wiser 
sovereigns, with those of industry and 
commerce along a line of seacoast, ren- 
dered it almost equal in importance. Cas- 
tile rarely intermeddled in the civil dis- 
sensions of Aragon ; the kings of Aragon 
frequently carried their arms into the 
heart of Castile. During the sanguinary 
outrages of Peter the Cruel, and the 
stormy revolutions which ended in es- 
tablishing the house of Trastamare, Ara- 
gon was not indeed at peace, nor alto- 
gether well governed ; but her political 
consequence rose in the eyes of Europe 
through the long reign of the ambitious 
and wily Peter IV., whose sagacity and 
good fortune redeemed, according to the 
common notions of mankind, the iniquity 
with which he stripped his relation, the 
King of Majorca, of the Balearic Islands, 
and the constant perfidiousness of his 
character. I have mentioned in another 
place the Sicilian war, prosecuted with 
so much eagerness for many years by 
Peter III. and his son Alfonso III. Af- 
ter this object was relinquished, James 
II. undertook an enterprise less splen- 
did, but not much less difficult, the con- 

* The first edition of this work was published 

in 1818. 



216 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV 



quest of Sardinia. That island, long ac- 
customed to independence, cost an in- 
credible expense of blood and treasure 
to the kings of Aragon during the whole 
fourteenth century. It was not fully 
subdued till the commencement of the 
next, under the reign of Martin. 

At the death of Martin, king of Aragon, 
Disputed in 1410, a memorable question 
succession arosc as to the right of succes- 
deatVof sion. Though Petronilla, daugh- 
Martin. ter of Ramiro II., had reigned 
in her own right from 1137 to 1172, an 
opinion seems to have gained ground 
from the thirteenth century, that females 
could not inherit the crown of Aragon. 
Peter IV. had excited a civil war by at- 
tempting to settle the succession upon 
his daughter, to the exclusion of his next 
brother. The birth of a son about the 
same time suspended the ultimate decis- 
ion of this question ; but it was tacitly 
understood that what is called the Salique- 
law ought to prevail.* Accordingly, on 
the death of John I., in 1395, his tw^o 
daughters were set aside in favour of his 
brother Martin, though not without oppo- 
sition on the part of the elder, whose 
husband, the Count of Foix, invaded the 
kingdom, and desisted from his preten- 
sion only through want of force. Mar- 
tin's son, the King of Sicily, dying in his 
father's lifetime, the nation was anxious 
that the king should fix upon his suc- 
cessor, and would probably have acqui- 
esced in his choice. But his dissolution 
occurring more rapidly than was expect- 
ed, the throne remained absolutely va- 
cant. The Count of Urgel had obtained 



a grant of the lieutenancy, which was the 
right of the heir apparent. This noble- 
man possessed an extensive territory in 
Catalonia, bordering on the Pyrenees. 
He was grandson of James, next brother 
to Peter IV., and, according to our rules 
of inheritance, certainly stood in the first 
place. The other claimants were the 
Duke of Gandia, grandson of James II., 
who, though descended from a more 
distant ancestor, set up a claim founded 
on proximity to the royal stock, which 
in some countries was preferred to a rep- 
resentative title ; the Duke of Calabria, 
son of Violante, younger daughter of 
John I. (the Countess of Foix being 
childless) ; Frederick, count of Luna, a 
natural son of the younger Martin, king 
of Sicily, legitimated by the pope, but 
with a reservation excluding him from 
royal succession ; and finally, Ferdinand, 
infant of Castile, son of the late king's 
sister.f The Count of Urgel Avas fa- 
voured in general by the Catalans, and 
he seemed to have a powerful support in 
Antonio de Luna, a baron of Aragon, so 
rich that he might go through his own 
estate from France to Castile. But this 
apparent superiority frustrated his hopes. 
The justiciary and other leading Arago- 
nese were determined not to suffer this 
great constitutional question to be deci- 
ded by an appeal to force, which might 
sweep away their liberties in the strug- 
gle. Urgel, confident of his right, and 
surrounded by men of ruined fortunes, 
was unwilling to submit his pretensions 
to a civil tribunal. His adherent, Anto- 
nio de Luna, committed an extraordinary 



* Zurita, t. ii., f. 188. It was pretended that women were excluded from the crown in England as 
well as France : and this analogy seems to have had some influence in determining the Aragonese to 
adopt a Salique-law. 

t The subjoined pedigree will show more clearly the respective titles of the competitors : — 
James II. died 1327. 



I 

Eleanor Q. of Castile. 



Alfonso IV. d. 1336. 



Peter IV. d. 1387. 



James C. of Urgel. 



D. of Gandia. 
D. of Gandia, 



John I. d. 1395. Martin, Peter C. of Urgel. 
1 d. 1110. I 



Henry III. Ferdinand. 
K. of Castile. 



Martin, 
-j K. of Sicily, 1409. 



C. of Urgel. 



I Joanna Violante 

John II. Countess of Foix. Q. of Naples. I 

K. of Castile. I Frederick 

I C. of Luna, 

Louis D. of 
Calabria. 



Chap. IV.J 



SPAIN. 



217 



outrage, the assassination of the Arch- 
bishop of Saragosa, which alienated the 
minds of good citizens from his cause. 
On the other hand, neither the Duke of 
Gandia, who was very old,* nor the 
Count of Luna, seemed fit to succeed. 
The party of Ferdinand, therefore, gained 
ground by degrees. It was determined, 
however, to render a legal sentence. 
The cortes of each nation agreed upon 
the nomination of nine persons, three 
Aragonese, three Catalans, and three 
Valencians, who were to discuss the 
pretensions of the several competitors, 
and, by a plurahty of six votes, to adjudge 
the crown. Nothing could be more 
solemn, more peaceful, nor, in appear- 
ance, more equitable, than the proceed- 
ings of this tribunal. They summoned 
the claimants before them, and heard 
them by counsel. One of these, Fred- 
• erick of Luna, being ill defended, the 
court took charge of his interests, and 
named other advocates to maintain them. 
A month was passed in hearing argu- 
ments ; a second was allotted to con- 
sidering them ; and, at the expiration of 
the prescribed time, it was announced to 
the people, by the mouth of St. Vincent 
Ferrier, that Ferdinand of Castile had 
ascended the throne. f 

[A. D. 1412.] In this decision it is im- 
Decision in possible not to suspect that the 
favour of judges Were swayed rather by 
Ferdinand politic considerations than a 
strict sense of hereditary right. 
It was therefore by no means universally 
popular, especially in Catalonia, of which 
principality the Count of Urgel was a 
native ; and perhaps the great rebellion 
of the Catalans fifty years afterward may 

* This Duke of Gandia died during the interreg- 
num. His son, though not so objectionable on the 
score of age, seemed to have a worse claim ; yet 
he became a competitor. 

t Biancae Commentaria, in Schotti Hispania II- 
lustrata, t. ii. Zurita, t. iii. f. 1-74. Vincent Fer- 
rier was the most distinguished churchman of his 
time in Spain. His influence, as one of the nine 
judges, is said to have been very instrumental in 
procuring the crown for Ferdinand. Five others 
voted the same way ; one for the Count of Urgel ; 
one doubtfully between the Count of Urgel and 
Duke of Gandia ; the ninth declined to vote. — 
Zurita, t. iii., f. 71. It is curious enough, that 
John, king of Castile, was altogether disregarded ; 
though his claim was at least as plausible as that 
of his uncle Ferdinand. Indeed, upon the princi- 

Eles of inheritance to which we are accustomed, 
lOuis, duke of Calabria, had a prior right to Ferdi- 
nand, admitting the rule which it was necessary 
for both of them to establish ; namely, that a right 
of succession might be transmitted through females, 
which females could not personally enjoy. This, 
as is well known, had been advanced in the pre- 
ceding age by Edward III. as the foundation of his 
claim to the crown of France. 



be traced to the disaffection which thw 
breach, as they thought, of the lawful 
succession had excited. Ferdinand how- 
ever was well received in Aragon. The 
cortes generously recommended the 
Count of Urgel to his favour, on account 
of the great expenses he had incurred in 
prosecuting his claim. But Urgel did not 
wait the effect of this recommendation. 
Unwisely attempting a rebellion with 
very inadequate means, he lost his es- 
tates, and was thrown for life into prison. 
[A. D. 1416.] Ferdinand's suc- 
cessor was his son Alfonso V., ^"°"*'' • 
more distinguished in the history of Italy 
than of Spain. For all the latter years 
of his life, he never quitted the kingdom 
that he had acquired by his arms : and, 
enchanted by the delicious air of Naples, 
intrusted the government of his patrimo- 
nial territories to the care of a brother 
and an heir. [A. D. 1458.] John 
II., upon whom they devolved by " " ' 
the death of Alfonso without legitimate 
progeny, had been engaged during his 
youth in the turbulent revolutions of Cas- 
tile, as the head of a strong party that op- 
posed the domination of Alvaro de Luna. 
[A. D. 1420.] By marriage with the heir- 
ess of Navarre, he was entitled, accord- 
ing to the usage of those times, to assume 
the title of king, and administration of 
government during her life. But his am- 
bitious retention of power still longer 
produced events which are the chief 
stain on his memory. Charles, prince of 
Viana, was, by the constitution of Na- 
varre, entitled to succeed his mother. [A. 
D. 1442.] She had requested him in her 
testament not to assume the government 
without his father's consent. That con- 
sent was always withheld. The prince 
raised what we ought not to call a rebell- 
ion ; but was made prisoner, and remain- 
ed for some time in captivity. John's ill 
disposition towards his son was exasper- 
ated by a stepmother, who scarcely dis- 
guised her intention of placing her own 
child on the throne of Aragon at the ex- 
pense of the eldest-born. After a life of 
perpetual oppression, chiefly passed in 
exile or captivity, the Prince of Viana 
died in Catalonia, at a moment when that 
province was in open insurrection upon 
his account. [A. D. 1461.] Though it 
hardly seems that the Catalans had any 
more general provocations, they perse- 
vered for more than ten years with in- 
veterate obstinacy in their rebellion ; of- 
fering the sovereignty first to a prince of 
Portugal, and afterward to Regnier, duke 
of Anjou, who was destined to pass his 
life in unsuccessful competition for king- 



218 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV, 



doms. The King of Aragon behaved 
with great clemency towards these in- 
surgents on their final submission. 

It is consonant to the principle of this 
Constitution work, to pass lightly over the 
of Aragon. common details of history, in 
order to fix the reader's attention more 
fully on subjects of philosophical inquiry. 
Perhaps in no European monarchy, ex- 
cept our own, was the form of govern- 
ment more interesting than in Aragon, as 
a fortunate temperament of law and jus- 
tice with the royal authority. So far as 
Originally a any thing can be pronounced of 
sort of regal its earlier period, before the 
aristocracy, capture of Saragosa in 1118, it 
was a kind of regal aristocracy, where a 
small number of powerful barons elected 
their sovereign on every vacancy, though, 
as usual in other countries, out of one 
family ; and considered him as little more 

Privileges ^'^^" ^'^^ ^^'^^^ ^^ ^^^^^ confeder- 
ofthencos acy.* These were the ricos 
hombres or hombres or barons, the first or- 
^'"'"'^' der of the state. Among these 
the kings of Aragon, in subsequent times, 
as they extended their dominions, shared 
the conquered territory in grants of hon- 
ours on a feudal tenure. f For this sys- 
tem was fully established in the kingdom 
of Aragon. A rico hombre, as we read 
in Vitalis, bishop of Huesca, about the 
middle of the thirteenth century ,| must 
hold of the king an honour or barony 
capable of supporting more than three 
knights ; and this he was bound to dis- 
tribute among his vassals in military fiefs. 
Once in the year he might be summoned 
with his feudataries to serve the sover- 
eign for two months (Zurita says three) ; 
and he was to attend the royal court, or 
general assembly, as a counsellor, when- 

* Alfonso III. complained that his barons want- 
ed to bring back old times, qiiando havia en el 
reyno tantos reyes como ricos hombres. — Biancae 
Commentaria, p. 787. The form of election sup- 
posed to have been used by these bold barons is 
well known. " We, who are as good as you, 
choose you for our king and lord, provided that you 
observe our laws and privileges, and if not, not." 
But I do not much believe the authenticity of this 
form of words.--See Robertson's Charles V., vol. 
i., note 31. It is, however, sufficiently agreeable 
to the spirit of the old government. 

t Los ricos hombres, por los feudos que tenian 
del rey, eran obligados de seguir al rey, si yva en 
persona a la guerra, y residir en ella tres meses en 
cadaun afio. — Zurita, tom. i., ful. 43. (Saragosa, 
1610.) A fief was usually called in Aragon an hon- 
our, que en Castilla llainavan tierra, y en el prin- 
cipado de Catalufia feudo, fol. 46. 

$ I do not know whether this work of Vitalis 
has been printed ; but there are large extracts from 
it in Blancas's history, and also in Du Cange, un- 
der the words Infancia, Mesiiadarius, &c. Several 
illustrations of these military tenures may be found 
in the Fueros de Aragon, especially lib. 7. 



ever called upon, assisting in its judicial 
as well as deliberative business. In the 
towns and villages of his barony he might 
appoint bailiffs to administer justice and 
receive penalties ; but the higher crimi- 
nal jurisdiction seems to have been re- 
served to the crown. According to 
Vitalis, the king could divest these ricos 
hombres of their honours at pleasure, af- 
ter which they fell into the class of mes- 
nadaries, or mere tenants in chief. But 
if this were constitutional in the reign of 
James I., which Blancas denies, it was 
not long permitted by that high-spirited 
aristocracy. By the General Privilege, or 
Charter of Peter IIL, it is declared that 
no barony can be taken away Avithout a 
just cause and legal sentence of the jus- 
ticiary and council of barons.* And the 
same protection was extended to the vas- 
sals of the ricos hombres. 

Below these superior nobles were the * 
mesnadaries, corresponding to Lower no- 
our mere tenants in chief, hold- ''''">'• 
ing estates not baronial immediately 
from the crown ; and the military vas- 
sals of the high nobility, the knights and 
infanzones ; a word which may be ren- 
dered by gentlemen. These had con- 
siderable privileges in that aristocratic 
government: they were exempted from 
all taxes, they could only be tried by the 
royal judges for any crime ; and off"ences 
committed against them were punished 
with additional severity.f The Burgesses 
ignoble classes were, as in other and pea.s- 
countries, the burgesses of towns, ^"""y- 
and the villeins or peasantry. The peas- 
antry seem to have been subject to ter- 
ritorial servitude, as in France and Eng- 
land. Vitalis says, that some villeins 
were originally so unprotected, that, as 
he expresses it, they might be divided 
into pieces by the sword among the sons 
of their masters : till they were provoked 
to an insurrection, which ended in es- 
tablishing certain stipulations, whence 
they obtained the denomination of vil- 
leins de parada, or of convention. J 

Though from the twelfth century the 
principle of hereditary succes- i^jbertiesof 
sion to the throne superseded, theAragon- 
in Aragon as well as Castile, eseking- 
the original right of choosing a "'"■ 
sovereign within the royal family, it was 
still founded upon one more sacred and 
fundamental, that of compact. No king 
of Aragon was entitled to assume that 
name until he had taken a coronation 
oath, administered by the justiciary at 
Saragosa, to observe the laws and liber- 



* Bianca; Comm., p. 730. 
t Idem, p. 732. 



t Idem, p. 729 



Chap. IV. J 



SPAIN. 



219 



ties of the realm.* Alfonso III., in 1285, 
being in France at the time of his father's 
death, named himself king in addressing 
the states, who immediately remonstra- 
ted on this premature assumption of his 
title, and obtained an apology. f Thus 
too Martin, having been cahed to the 
crown of Aragon by the cortes in 1395, 
was specially required not to exercise 
any authority before his coronation.! 

Blancas quotes a noble passage from 
the acts of cortes in 1451. "We have 
always heard of old time, and it is found 
by experience, that, seeing the great bar- 
renness of this land, and the poverty of 
the realm, if it were not for the liberties 
thereof, the folk would go hence to live 
and abide in other realms, and lands 
more fruitful."'^ This high spirit of free- 
dom had long animated the Aragonese. 
After several contests with the crown in 
the reign of James I., not to go back to 
earlier times, they compelled Peter III., 
General "^ 1283, to grant a law, called the 
Privilege General Privilege, the Magna 
of 1283 Charta of Aragon, and perhaps a 
more full and satisfactory basis of civil 
liberty than our own. It contains a se- 
ries of provisions against arbitrary talla- 
ges, spoliations of property, secret pro- 
cess after the manner of the Inquisition in 
criminal charges, sentences of the justi- 
ciary without assent of the cortes, ap- 
pointment of foreigners or Jews to judi- 
cial offices, trials of accused persons in 
places beyond the kingdom, the use of 
torture, except in charges of falsifying 
the coin, and the bribery of judges. 
These are claimed as the ancient liber- 
ties of their country. "Absolute power 

* Zuiita, Anales de Aragon, t. i., fol. 101 ; t. iii., 
fol. 76. 

t Biancae Coram., p. 661. They acknowledged, 
at the same time, that he was their natural lord, 
and entitled to reign as lawful heir to his father — 
so oddly were the hereditary and elective titles 
jumbled together.— Zurita, t. i., fol. 303. 

t Zurita, t. ii., fol. 424. 

^ Siempre havemos oydo dezir antigament, h se 
troba por esperiencia, que attendida la grand ste- 
rilidad deaquesta tierra,^ probreza deaqueste reg- 
no, si non fues por las libertades de aquel, se yrian 
a bivir, y habitar las gentes a otros regnos, ^ tier- 
ras mas frutieras, p. 571. Aragon was, in fact, a 
poor country, barren and ill-peopled. The kings 
were forced to go to Catalonia for money, and in- 
deed were little able to maintain expensive con- 
tests. The wars of Peter IV. in Sardinia, and of 
Alfonso V. with Genoa and Naples, empoverished 
their people. A hearth-tax having been imposed 
in 1404,11 was found that there were 42,083 houses 
in Aragon, which, according to most calculations, 
will not give much more than 200,000 inhabitants. 
In 1429, a similar tax being laid on, it is said that 
the number of houses was diminished in conse- 
quence of war. — Zurita, t. iii., fol. 189. It contains 
at present between 600,000 and 700,000 inhabitants. 



(mero imperio e mixto), it is declared, 
never was the constitution of Aragon, nor 
of Valencia, nor yet of Ribagorga, nor 
shall there be in time to come any inno- 
vation made ; but only the law, custom, 
and privilege which has been anciently 
used in the aforesaid kingdoms."* 

The concessions extorted by our ances- 
tors from John, Henry III., and privilege of 
Edward I., were secured by the Union, 
only guarantee those times could afford, 
the determination of the barons to en- 
force them by armed confederacies. 
These, however, were formed according 
to emergencies, and, except in the fa- 
mous commission of twenty -five conser- 
vators of Magna Charta, in the last year 
of John, were certainly unwarranted by 
law. But the Aragonese established a 
positive right of maintaining their liber- 
ties by arms. This was contained in the 
Privilege of Union granted by Alfonso 

III. in 1287, after a violent conflict with 
his subjects; but which was afterward 
so completely abolished, and even eradi- 
cated from the records of the kingdom, 
that its precise words have never been 
recovered.! According to Zurita, it con- 
sisted of two articles : first, that, in the 
case of the king's proceeding forcibly 
against any member of the union without 
previous sentence of the justiciary, the 
rest should be absolved from their allegi- 
ance ; secondly, that he should hold cor- 
tes every year in Saragosa.| During the 
two subsequent reigns of James II. and 
Alfonso IV., httle pretence seems to have 
been given for the exercise of this right. 
But dissensions breaking out imder Peter 

IV. in 1347, rather on account of his at- 
tempt to settle the crown upon his daugh- 
ter than of any specific public grievances, 
the nobles had recourse to the union, that 
last voice, says Blancas, of an al- Revolt 
most expiring state, full of weight against^ 
and dignity, to chastise the pre- ^''^'e^iv. 
sumption of kings. ^ They assembled at 
iSaragosa, and used a remarkable seal for 
all their public instruments, an engraving 
from which may be seen in the historian 



» Fueros de Aragon, fol. 9. Zurita, t. i., fol. 265. 

t Blancas says that he had discovered a copy of 
the Privilege of Union in the archives of the see 
of Tarragona, and would gladly have published it, 
but for his deference to the wisdom of former ages, 
which had studio^isly endeavoured to destroy all 
recollection of that dangerous law. — Ibid., p. 662. 

J Ibid., t. i., f. 322. 

^ Priscam illam Unionis, quasi morientis reipuo- 
licas extremam vocem, auctoritatis et gravitatis ple- 
nam, regum insolentine apertum vindicem excitd- 
runt, summa ac singulari bonoruni omnium con- 
sensione, p. 669. It is remarkable that such strong 
language should have been tolerated under PhUip 
II. 



220 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV. 



I have just quoted. It represents the 
king sitting on his throne, with the con- 
federates kneehng in a suppliant attitude 
around, to denote their loyalty, and un- 
willingness to offend. But in the back- 
ground tents and lines of spears are dis- 
covered, as a hint of their ability and res- 
olution to defend themselves. The le- 
gend is Sigillum Unionis Aragonum. This 
respectful demeanour tovrards a sovereign 
against whom they were waging war, re- 
minds us of the language held out by our 
Long Parliament before the Presbyteri- 
an party was overthrown. And although 
it has been lightly censured as inconsist- 
ent and hypocritical, this tone is the safest 
that men can adopt, who, deeming them- 
selves under the necessity of withstand- 
ing the reigning monarch, are anxious to 
avoid a change of dynasty, or subversion 
of their constitution. These confederates 
were defeated by the king at Epila, in 
1348.* But his prudence and the re- 
maining strength of his opponents indu- 
cing him to pursue a moderate course, 
there ensued a more legitimate and per- 
manent balance of the constitution from 
Privilege this victory of the royalists. The 
of Union Privilege of Union was abroga- 
otherpro- ted, Peter himself cutting to 
visions in- pieces wilh his sword the origi- 
stuuted. j^^Y instrument. But, in return, 
many excellent laws for the security of 
the subject were enacted ;t and their pres- 
ervation was intrusted to the greatest 
officer of the kingdom, the justiciary, 
whose authority and pre-eminence may 
in a great degree be dated from this peri- 
od. | That watchfulness over public lib- 
erty, which originally belonged to the 
aristocracy of ricos hombres, always apt 
to thwart the crown, or to oppress the 
people, and which was afterward main- 
tained by the dangerous privilege of union, 
became the duty of a civil magistrate, 
accustomed to legal rules, and responsi- 
ble for his actions, whose office and func- 



♦ Zurita observes that the battle of Epila was 
the last fought in defence of public liberty, for 
which it was held lawful of old to take up arms, 
and resist the king, by virtue of the Privileges of 
Union. For the authority of the justiciary being 
afterward established, the former contentions and 
wars came to an end ; means being found to put 
the weak on a level with the powerful, in which 
consists the peace and tranquillity of all states ; and 
from thence the name of Union was, by common 
consent, proscribed, t. ii., fol. 226. Blancas also 
remarks, that nothing could have turned out more 
advantageous to the Aragonese than their ill-for- 
tune at Epila. 

t Fueros de Aragon. De lis, quaj Dominus rex, 
fol. 14, et alibi passim. 

t Bianc. Comm., p. 671, 811. Zurita, t. ii., fol. 
229 



tions are the most pleasing feature in the 
constitutional history of Aragon. 

The justiza or justiciary of Aragon has 
been treated by some writers as office or 
a sort of anomalous magistrate, J"s''<:iai7. 
created originally as an intermediate pow- 
er between the king and people, to watch 
over the exercise of royal authority. But 
I do not perceive that his functions were, 
in any essential respect, different from 
those of the chief justice of England, di- 
vided, from the time of Edward I., among 
the judges of the King's Bench. We 
should undervalue our own constitution 
by supposing that there did not reside in 
that court as perfect an authority to re- 
dress the subject's injuries, as was pos- 
sessed by the Aragonese magistrate. In 
the practical exercise, indeed, of this pow- 
er, there was an abundant difference. 
Our English judges, more timid and pli- 
ant, left to the remonstrances of parlia- 
ment that redress of grievances which 
very frequently lay within the sphere of 
their jurisdiction. There is, I believe, no 
recorded instance of a habeas corpus 
granted in any case of illegal imprison- 
ment by the crown or its officers during 
the continuance of the Plantagenet dy- 
nasty. We shall speedily take notice of 
a very different conduct in Aragon. 

The office of justiciary, whatever con- 
jectural antiquity some have assigned to 
it, is not to be traced beyond the capture 
of Saragosa in 1118, when the series of 
magistrates commences.* But for a 
great length of time they do not appear 
to have been particularly important ; the 
judicial authority residing in the council 
of ricos hombres, whose suffrages the jus- 
ticiary collected, in order to pronounce 
their sentence rather than his own. A pas- 
sage in Vitalis, bishop of Huesca, whom 
I have already mentioned, shows this to 
have been the practice during the reign 
of James I.f Gradually, as notions of 
liberty became more definite, and laws 
more numerous, the reverence paid to 
their permanent interpreter grew strong- 
er ; and there was fortunately a succes- 
sion of prudent and just men in that high 
office, through whom it acquired dignity 
and stable influence. Soon after the ac- 



* Biancae Comment., p. 638. 

t Id., p. 722. Zurita indeed refers the justicia- 
ry's pre-eminence to an earlier date ; namely, the 
reign of Peter II., who took away a great part of 
the localjurisdiclionsof the ricos hombres, t. i,,fol. 
102. But, if I do not misunderstand the meaning 
of Vitalis, his testimony seems to be beyond dis- 
pute. By the General Privilege of 1283, the justi- 
ciary was to advise with the ricos hombres in all 
cases where the king was a party against any of 
his subjects.— Zurita, f. 281. See also f. 180. 



Ohap. IV.] 



SPAIN. 



221 



cession of James II., on some dissen- 
sions arising between the king and his 
barons, he called in the justiciary as a me- 
diator, whose sentence, says Blancas, all 
obeyed.* At a subsequent time in the 
same reign, the military orders, pretending 
that some of their privileges were violated, 
raised a confederacy or union against the 
king. James offered to refer the dispute 
to the justiciary, Xiinenes Salanova, a 
man of eminent legal knowledge. The 
knights resisted his jurisdiction, alleging 
the question to be of spiritual cognizance. 
He decided it, however, against them in 
full cortes at Saragosa, annulled their 
league, and sentenced the leaders to pun- 
ishment.f It was adjudged also that no 
appeal could lie to the spiritual court 
from a sentence of the justiciary passed 
with assent of the cortes. James II. is 
said to have frequently sued his subjects 
in the justiciary's court, to show his re- 
gard for legal measures ; and during the 
reign of this good prince, its authority 
became more established. J Yet it was 
not perhaps looked upon as fully equal to 
maintain public liberty against the crown, 
till, in the cortes of 1348, after the Privi- 
lege of Union was for ever abolished, such 
laws were enacted, and such authority giv- 
en to the justiciary, as proved eventually a 
more adequate barrier against oppression 
than any other country could boast. All 
the royal as well as territorial judges 
were bound to apply for his opinion in 
case of legal difficulties arising in their 
courts, which he was to certify within 
eight days. By subsequent statutes of 
the same reign, it was made penal for 
any one to obtain letters from the king, 
impeding the execution of the justiza's 
process, and they were declared null. In- 
ferior courts were forbidden to proceed 
in any business after his prohibition.^ 
Many other laws might be cited, corrob- 
orating the authority of the great magis- 
trate ; but there are two parts of his re- 
medial jurisdiction which deserve special 
notice. 

These are the processes of jurisfirma, or 
firma del derecho, and of manifestation. 



* Biancae Comment., p. 663. 

+ Zurita, t. i., f. 403 ; t. ii., f. 34. Bianc, p. 666. 
The assent of the cortes seems to render this in the 
nature of a legislative rather than a judicial pro- 
ceeding ; but it is difficult to pronounce about a 
transaction so remote in time, and in a foreign 
country, the native historians writing rather con- 
cisely. 

I Bianc, p. 663. James acquired the surname of 
Just, el Justiciero, by his fair dealings towards his 
subjects. — Zurita, t. ii., fol. 82. 

^ Fueros de Aragon : Quod in dubiis non crassis. 
(A. D. 1348.) Quod irapetrans (1372), &c. Zurita, 

ii., foU 229. Bianc, p. 671 and 811. 



The former bears some anal- Procossesof 
ogy to the writs of pone and and^mam-"" 
certiorari in England, through lescanoii. 
which the court of King's Bench exer- 
cises its right of withdrawing a suit from 
the jurisdiction of inferior tribunals. But 
the Aragonese jurisfirma was of more 
extensive operation. Its object was not 
only to bring a cause commenced in an in- 
ferior court before the justiciary, but to 
prevent or inhibit any process from issu- 
ing against the person who applied for its 
benefit, or any molestation from being 
offered to him ; so that, as Blancas ex- 
presses it, when we have entered into a 
recognisance (firme et graviter assevere- 
mus) before the justiciary of Aragon to 
abide the decision of law, our fortunes 
shall be protected by the interposition of 
his prohibition, from the intolerable ini- 
quity of the royal judges.* The process 
termed manifestation, afforded as ample 
security for personal liberty as that of 
jurisfirma did for property. "To mani- 
fest any one," says the writer so often 
quoted, " is to wrest him from the hands 
of the royal oflScers, that he may not suf- 
fer any illegal violence ; not that he is 
set at liberty by this process, because the 
merits of his case are still to be inquired 
into ; but because he is now detained 
publicly, instead of being, as it were, con- 
cealed, and the charge against him is 
investigated, not suddenly or with pas- 
sion, but in calmness and according to 
law, therefore this is called manifesta- 
tion."! The power of this writ (if I may 

* Bianc, p. 751. Fueros de Aragon, f. 137. 

t Est apud nos manifestare, reum subitosumere, 
atque h regiis manibus extorquere, ne qua ipsi con- 
tra jus vis mferatur. Non quod tunc reus judicio 
liberetur ; nihilominus tamen, ut loquimur.de mer- 
itis causs ad plenum cognoscitur. Sed quod dein- 
ceps manifesto teneatur, quasi antea celatus extitis- 
set ; necesseque deinde sit de ipaius culpa, non im- 
petu et cum furore, sed sedatis prorsusanimis. et 
juxta constitutas leges judicari. Ex eo autem, quod 
hujusmodi judicium manifesto deprehensum, omni- 
bus jam patere debeat, Manifestationis sibi nomen 
arripuit, p. 675. 

Ipsius Manifestationis potestas tarn solida est et 
repentma, ut homini jam coUum in laqueum inse- 
renti subveniat. lUius enim praesidio, damnatus, 
dum per leges licet, quasi experiendi juris gratia, 
de manibus judicum confestim extorquetur, et in 
carcerem ducitur ad id Kdificatum, ibidemque as- 
servatur tamdiu, quamdiu jurene, an injuria quid 
in ea causa factum fuerit, judicatur. Propterea 
career hie vulgari lingua, la carcel de los manifes 
tados nuncupatur, p. 751. 

Fueros de Aragon, fol. 60. De Manifestationj- 
bus personarum. Independently of this right of 
manifestation by writ of the justiciary, there are 
several statutes in the Fueros against illegal de- 
tention, or unnecessary severity towards pnsonera. 
— (De Custodia reorum, f. 163.) No judge could 
proceed secretly in a criminal process ; an indis- 
pensable safeguard to public liberty, and one of the 



222 



EUROPE DURING THE MIDDLE AGES. 



[CttAP. IV 



apply our term) was such, as he else- 
where asserts, that it would rescue a 
man whose neck was in the halter. A 
particular prison was allotted to those 
detained for trial under this process. 

Several proofs that such admirable pro- 
insiances of visions did uot remain a dead 
their appii- letter in the law of Aragon, 
canon. appear in the two historians, 
Blancas and Zurita, wliose noble attach- 
ment to liberties, of which they had 
either witnessed, or might foretel the 

most salutary, as well as most ancient, provisions 
in our own constitution. (De judiciis.) Torture 
was abolished, except in cases ol coining false mon- 
ey, and then only in respect of vagabonds. — (Gen- 
eral Privilege of 1283.) 

Zurita has e.xplained the two processes of juris- 
firma and manifestation so perspicuously, that, as 
the subject is very interesting, and rather out of 
the common way, I shall both quote and translate 
the passage. Con firmar de derecho, que es dar 
caution a estara justicia, se conseden liteias inhib- 
itorias por el justicia de Aragon, para que no pue- 
dan ser presos, ni pnvados, ni despojados de su 
possession, hasta que judicialmente se conozca, y 
declare sobre la pretension, y justicia de las partes, 
y parezca por processo legilimo, que se deve revo- 
car la tal inhibition. Esta fue la suprema y prin- 
cipal autorulad del Justicia de Aragon desde que 
este magistrado tuvo origen, y lo que llama mani- 
festation ; porque assi coino la firma de derecho 
por privilegio general del reyno impide, que no 
puede ninguno ser preso, o agraviado contra razon 
y justicia, de la misma manera la manifestacion, 
que es otro privilegio, y remedia muy principal, 
tiene fuerca, quando alguno es preso sin preceder 
processo legitimo, o quando lo prenden de hecho 
sin orden de justicia ; y en estos casos solo el Jus- 
ticia de Aragon, quando se tiene recurso al el, se 
interpone, manifestando 11 preso, que es tomarlo a 
su mano, de poder de qualquiera juez, aunque sea 
el mas supremo ; y es obligado el Justicia de Ara- 
gon, y sus lugartenientes de proveer la manifesta- 
cion en el mismo instante, que les es pedida sin 
preceder informacion ; y basta que se pida por 
qualquiere persona que se diga procurador del que 
quiere que lo tengan por manifesto, t. ii., fol. 386. 
" Upon a firma de derecho, which is to give securi- 
ty for abiding the decision of law, the Justiciary of 
Aragon issues letters inhibiting all persons to ar- 
rest the party, or deprive him of his possession, 
until the matter shall be judicially inquired into, 
and It shall appear that such inhibition ought to be 
revoked. This process and that which is called 
manifestation have been the chief powers of the 
iusticiary ever since the commencement of that 
magistracy. And as the firma de derecho, by the 
general privilege of the realm, secures every man 
from being arrested or molested against reason 
and justice, so the manifestation, which is another 
principal and remedial right, takes place when any 
one is actually arrested without lawful process ; 
and in such cases only the Justiciary of Aragon, 
when recourse is had to him, interposes by mani- 
festing the person arrested, that is, by taking him 
into his own hands, out of the power of any judge, 
however high in authority ; and this manifestation 
the justiciary, or his deputies in his absence, are 
bound to issue at the same instant it is demanded, 
without farther inquiry ; and it may be demanded 
by any one as attorney of the party requiring to be 
manifested." 



extinction, continually displays itself. I 
cannot help illustrating this subject by 
two remarkable instances. The heir ap- 
parent of the kingdom of Aragon had a 
constitutional right to the lieutenancy or 
regency during the sovereign's absence 
from the realm. The title and office in 
deed were permanent, though the func- 
tions must of course have been superse- 
ded during the personal exercise of roy- 
al authority. But as neither Catalonia 
nor Valencia, which often demanded the 
king's presence, was considered as part 
of the kingdom, there were pretty fre- 
quent occasions for this anticipated reign 
of the eldest prince. Such a regulation 
was not likely to diminish the mutual 
and almost inevitable jealousies between 
kings and their heirs apparent, which have 
so often disturbed the tranquillity of a 
court and a nation. Peter IV. removed 
his eldest son, afterward John I., from 
the lieutenancy of the kingdom. The 
prince entered into a firma del derecho 
before the justiciary, Dominic de Cerda, 
who, pronouncing in his favour, enjoined 
the king to replace his son in the lieuten- 
ancy as the undoubted right of the eldest 
born. Peter obeyed, not only in fact, to 
which, as Blancas observes, the law com- 
pelled him, but with apparent cheerful- 
ness.* There are indeed no private per- 
sons who have so strong an interest in 
maintaining a free constitution and the 
civil liberties of their countrymen, as the 
members of royal families ; since none 
are so much exposed, in absolute govern- 
ments, to the resentment and suspicion 
of a reigning monarch. 

John I., who had experienced the pro- 
tection of law in his weakness, had af- 
terward occasion to find it interposed 
against his power. This king had sent 
some citizens of Saragosa to prison with- 
out form of law. They applied to Juan 
de Cerda, the justiciary, for a manifesta- 
tion. He issued his writ accordingly; 
nor, says Blancas. could he do otherwise, 
without being subject to a heavy fine. 
The king, pretending that the justiciary 
was partial, named one of his own judges, 
the vice-chancellor, as coadjutor. This 
raised a constitutional question, whether, 
on suspicion of partiality, a coadjutor to 
the justiciary could be appointed. The 
king sent a private order to the justiciary 
not to proceed to sentence upon this in- 
terlocutory point until he should receive 
instructions in the council, to which he 
was directed to repair. But he instantly 
pronounced sentence in favour of his ex- 

* Zurita, ubi supra. Blancas, p. 673. 



Chap. IV.] 



SPAIN. 



223 



elusive jurisdiction without a coadjutor. 
He then repaired to the palace. Here 
the vice-chancellor, in a long harangue, 
enjoined him to suspend sentence till he 
had heard the decision of the council. 
Juan de Cerda answered that, the case 
being clear, he had already pronounced 
upon it. This produced some expres- 
sions of anger from the king, who began 
to enter into an argument on the merits 
of tlie question. But the justiciary an- 
swered that, with all deference to his 
majesty, he was bound to defend his con- 
duct before the cortes, and not elsewhere. 
On a subsequent day, the king having 
drawn the justiciary to his country pal- 
ace on pretence of hunting, renewed the 
conversation with the assistance of his 
ally the vice-chancellor ; but no impres- 
sion was made on the venerable magis- 
trate, whom John at length, though much 
pressed by his advisers to violent cour- 
ses, dismissed with civility. The king 
was probably misled throughout this trans- 
action, which 1 have thought fit to draw 
from obscurity, not only in order to illus- 
trate the privilege of manifestation, but 
as exhibiting an instance of judicial firm- 
ness and integrity, to which, in the four- 
teenth century, no country perhaps in 
Europe could offer a parallel.* 

Before the cortes of 1348, it seems as 
Office of if the justiciary might have 
justiciary been displaced at the king's 
held for life, pleasure. From that time he 
held his station for life. But, in order to 
evade this law, the king sometimes ex- 
acted a promise to resign upon request. 
Ximenes Cerdan, the justiciary in 1420, 
having refused to fulfil this engagement, 
Alfonso V. gave notice to all his subjects 
not to obey him, and notwithstanding the 
alarm which this encroachment created, 
eventually succeeded in compelling him 
to quit his office. In 1439, Alfonso in- 
sisted with still greater severity upon the 
execution of a promise to resign made 
by another justiciary, detaining him in 
prison until his death. But the cortes of 
1443 proposed a law, to which the king 
reluctantly acceded, that the justiciary 
should not be compellable to resign his 
ofiice on account of any previous en- 
gagement he might have made.f 

But lest these high powers, imparted 
Responsibi- fo^ '-he prevention of abuses, 
lityofihis should themselves be abused, 
magistrate, ^j^g justiciary was responsible, 
in case of an unjust sentence, to the ex- 



* Biancas Commentar., ubi supra. Zurita relates 
the story, but not so fully. 

t Fueros de Aragon, fol. 22. Zurita, t. iii., fol. 
140, 255, 272. Bianc. Comment., p. 701. 



tent of the injury inflicted ;* and was 
also subjected, by a statute of 1390, to a 
court of inquiry, composed of four per- 
sons chosen by the king out of eight 
named by the cortes ; whose office ap- 
pears to have been that of examining 
and reporting to the four estates in cortes, 
by whom he was ultimately to be ac- 
quitted or condemned. This superintend- 
ence of the cortes, however, being 
thought dilatory and inconvenient, a 
court of seventeen persons was appointed, 
in 1461, to hear complaints against the 
justiciary. Some alterations were after- 
wai'd made in this tribunal.! The justi- 
ciary was always a knight, chosen from 
the second order of nobility, the barons 
not being liable to personal punishment. 
He administered the coronation-oath to 
the king; and in the cortes of Aragon, 
the justiciary acted as a sort of royal 
commissioner, opening or proroguing the 
assembly by the king's direction. 

No laws could be enacted or repealed, 
nor any tax imposed, without Rights of le- 
the consent of the estates duly gis^ation ami 
assembled. J Even as early as taxation. 
the reign of Peter II., in 1205, that prince 
having attempted to impose a general tal- 
lage, the nobility and commons united for 
the preservation of their franchises ; and 
the tax was afterward granted in part by 
the cortes.^ It may easily be supposed 
that the Aragonese were not behind other 
nations in statutes to secure these priv- 
ileges, which, upon the whole, appear to 
have been more respected than in any 
other monarchy. II The general privilege 



* Fueros de Aragon, fol. 25. 

t Blancas. Zurita, t. iii., f. 321 ; t. iv., f. 103. 
These regulations were very acceptable to the na- 
tion. In fact, the justiza of Aragon had possessed 
much more unlimited powers than ought to be in- 
trusted to any single magistrate. The court of 
King's Bench in England, besides its consisting of 
four co-ordinate judges, is checked by the appel- 
lant jurisdictions of the Exchequer Chamber and 
House of Lords, and, still more importantly, by the 
rights of juries. 

I Majores nostri, quae de omnibus statuenda es- 
sent, noluerunt iuberi, vetarive posse, nisi vocatis, 
descriptisque ordinibus, ac cunctis eorum adhibitia 
suffragiis, re ipsa cognita et promulgata. Unde 
perpetuum illud nobis comparatum est jus, ut com- 
munes et publicse leges neque tolli, neqtie rogari 
possint, nisi prius universus populus una voce co- 
mitiis institutis suum ea de re liberums uffragium 
ferat ; idque postea ipsius regis assensu comprobe 
tur. — Biancae, p. 761. 

() Zurita, t. i., fol. 92. 

II Fueros de Aragon: Quod sissse in Aragonid 
removeantur (A. D. 1372). De prohibitione sissa- 
rum (139B). De conservatione patrimonii (1461). 
I have only remarked two instances of arbitrary 
taxation in Zurita's history, which is singularly full 
of information ; one, in 1343, when Peter IV. col 
lected money from various cities, though not with 
out opposition ; and the other a remonstrance of 



S24 



EUROPE DURING THE MIDDLE AGES. 



[Chap. 17 



of 1283 formed a sort of ground-work for 
this legislation, like the Great Charter in 
England. By a clause in this law, cortes 
were to be held every year at Saragosa. 
But, under James II., their time of meet- 
ing was reduced to once in two years, 
and the place was left to the king's dis- 
cretion.* Nor were the cortes of Ara- 
gon less vigilant than those of Castile in 
claiming a right to be consulted in all im- 
portant deUberations of the executive 
power, or in remonstrating against abuses 
of government, or in superintending the 
proper expenditure of public money. f A 
variety of provisions, intended to secure 
these parliamentary privileges and the 
civil liberty of the subject, will be found 
dispersed in the collection of Aragonese 
laws,:]: which may be favourably com- 
pared with those of our own statute- 
book. 

Four estates, or, as they were called, 
Cortes of arms (brazos), formed the cortes 
Aragon. of Aragon ; the prelates,^ and com- 

the cortes in 1383 against heavy taxes ; and it is 
not clear that this refers to general unauthorized 
taxation.— Zurita, t. ii., f. 168 and 382. Blancas 
mentions that Alfonso V. set a tallage upon his 
towns for the marriage of his natural daughters, 
which he might have done had they been legiti- 
mate ; but they appealed to the justiciary's tribu- 
nal, and the king receded from his demand, p. 701. 

Some instances of tyrannical conduct in violation 
of the constitutional la.ws occur, as will naturally 
be supposed, in the annals of Zurita. The execu- 
tion of Bernard Cabrera under Peter IV., t. ii., f. 
336, and the severities inflicted on Queen Forcia 
by her son-in-law John I., f. 391, are perhaps as 
remarkable as any. 

* Zurita, t. i., f. 426. In general the session 
ksted from four to six months. One assembly 
was prorogued from time to time, and continued 
six years, from 1446 to 1452, which was com- 
plained of as a violation of the law for their bien- 
nial renewal, t. iv., f. 6. 

t The Sicilian war of Peter III. was very, un- 
popular, because it had been undertaken wjthout 
consent of the barons, contrary to the practice of 
the kingdom; porque ningun negocio arduo em- 
prendian, sin acuerdo y consejo de sus ricos hom- 
bres.— Zurita, t. i., fol. 264. The cortes, he tells 
us, were usually divided into two parties, whigs 
and tories ; estava ordinariamente dividida en dos 
partes, la unaquepensava procurar el beneficiodel 
reyno, y la otra que ei servicio del rey, t. ill., fol. 
321. 

% Fueros y observancias del reyno de Aragon. 
2 vols, in fol., Saragosa, 1667. The most impor- 
tant of these are collected by Blancas, p. 750. 

^ It is said by some writers that the ecclesiasti- 
cal arm was not added to the cortes of Aragon till 
about the year 1300. But I do not find mention in 
Zurita of any such constitutional change at that 
time ; and the prelates, as we might expect from 
the analogy of other countries, appear as members 
of the national council long before. Quejn Petro- 
nilla, in 1142, summoned a los perlados, ricos 
hombres, y cavalleros, y procuradores de las ciu- 
dades y villas, que le juntassen a cortes generales 
en la ciudad de Huesca.— Zurita, t. i., fol. 71. So 
in the cortes of 1275, and on other occasions. 



manders of military orders, who passed 
for ecclesiastics ; the barons, or ricos 
hombres ; the equestrian order, or infan- 
zones, and the deputies of royal towns.* 
The two former had a right of appearing 
by proxy. There was no representation 
of the infanzones, or lower nobility. 
But it must be remembered that they 
were not numerous, nor was the kingdom 
large. Thirty-five are reckoned by Zu- 
rita as present in the cortes of 1395, and 
thirty-three in those of 1412 ; and as 
upon both occasions an oath of fealty to 
a new monarch was to be taken, I pre- 
sume that nearly all the nobility of the 
kingdom were present. f The ricos hom- 
bres do not seem to have exceeded twelve 
or fourteen in number. The ecclesiasti- 
cal estate was not much, if at all, more 
numerous. A few principal towns alone 
sent deputies to the cortes ; but their 
representation was very full ; eight or 
ten, and sometimes more, sat for Sara- 
gosa, and no town appears to have had 
less than four representatives. During 
the interval of the cortes a permanent 
commission, varying a good deal as to 
numbers, but chosen out of the four es- 
tates, was empowered to sit with very 
considerable authority, receiving and 
managing the public revenue, and pro- 
tecting the justiciary in his functions.]: 

The kingdom of Valencia and princi- 
pality of Catalonia having been „„„ 
annexed to Aragon, the one by mentor va 
conquest, the other by marriage, '^"'''a and 
were always kept distinct from 
it in their laws and government. Each 
had its cortes, composed of three estates, 
for the division of the nobility into two 
orders did not exist in either country. 
The Catalans were tenacious of their 
ancient usages, and averse to incorpora- 
tion with any other people of Spain. 
Their national character was high-spir- 
ited and independent ; in no part of the 
peninsula did the territorial aristocracy 
retain, or at least pretend to such exten- 
sive privileges,^ and the citizens were 



* Popular representation was more ancient in 
Aragon than in any other monarchy. The depu- 
ties of towns appear in the cortes of 1133, as Rob- 
ertson has remarked from Zurita. — Hist, of Charles 
v., note 32. And this cannot well be called in ques- 
tion, or treated as an anomaly , for we find them 
mentioned in 1142 (the passage cited in the last 
note), and again in 1164, when Zurita enumerates 
many of their names, fol. 74. The institution of 
concejos, or corporate districts under a presiding 
town, prevailed in Aragon, as it did in Castile. 

t Zurita, t. ii., f. 420 ; t. iii., f. 76. 

i Biancae, p. 762. Zurita, t. iii., f. 76; f. 182, et 
alibi. 

() Zurita, t. ii., f. 360. The villanage of the peas- 
antry in some parts of Catalonia was very severe, 



Chap. IV.] 



SPAIN. 



225 



justly proud of wealth acquired by indus- 
try, and of renown achieved by valour. 
At the accession of Ferdinand I., which 
they had not much desired, the Catalans 
obliged him to swear three times succes- 
sively to maintain their liberties, before 
they would take the reciprocal oath of 
allegiance.* For Valencia it seems to 
have been a politic design of James the 
Conqueror to establish a constitution 
nearly analogous to that of Aragon, but 
with such limitations as he should im- 
pose, taking care that the nobles of the 
two kingdoms should not acquire strength 
by union. In the reigns of Peter III. 
and Alfonso III., one of the principal ob- 
jects contended for by the barons of Ar- 
agon was the estabhshment of their own 
laws in Valencia; to which the king 
never acceded.f They permitted, how- 
ever, the possessions of the natives of Ar- 
agon in the latter kingdom to be govern- 
ed by the law of Aragon. | These three 
states, Aragon, Valencia, and Catalonia, 
were perpetually united by a law of Al- 
fonso III. ; and every king on his acces- 
sion was bound to swear that he would 
never separate them.^ Sometimes gen- 
eral cortes of the kingdoms and princi- 
pality were convened ; but the members 
did not, even in this case, sit together, 
and were no otherwise united, than as 
they met in the same city.|| 

I do not mean to represent the actual 
condition of society in Aragon as equally 
excellent with the constitutional laws. 
Relatively to other monarchies, as I 
State of have already observed, there seem 
police, to fiave been fe^ver excesses of 
the royal prerogative in that kingdom. 
But the licentious habits ot a feudal aris- 
tocracy prevailed v^ery long. We find in 
history instanced of private war between 
the great fannlies, so as to disturb the 
peace of the whole nation, even near the 
close of the fifteenth century.^ The 
right of avenging injuries by arms, and 
the rc^remony of diffidation, or solemn 
defanee of an enemy, are preserved by 
the laws. We even meet with the an- 
cient barbarous usage of paying a couipo- 
sition to the kindred of a murdered man.** 
The citizens of Saragosa were sometimes 

even near the end of the fifteenth century, t. iv., 
f. 2.37. 

* Zurita, t. iii„ f. 81. 

+ Id., t. i., f. 281, 310, 333. There was originally 
a justiciary in the kingdom of Valencia, f. 281 ; but 
this, I believe, did not long continue. 

t Idem, t. ii, f 433. () Idem, t. ii., f. 91. 

II Biancs Comment., p. 760. Zurita, t. iii., fol. 
239. 

H Zurita, t. iv., fol. 189. 

** Fueros de Aragon, f. 166, &c. 



turbulent, and a refractory nobleman 
sometimes defied the ministers of jus- 
tice. But, owing to the remarkable co- 
piousness of the principal Aragonese his- 
torian, we find more frequent details of 
this nature than in the scantier annals of 
some countries. The internal condition 
of society was certainly far from peace- 
able in other parts of Europe. 

By the marriage of Ferdinand with 
Isabella, and by the death of union of 
John II. in 1479, the two an- Castiieand 
cient and rival kingdoms of Cas- -dragon, 
tile and Aragon were for ever consohda- 
ted in the monarchy of Spain. There 
had been some difficulty in adjusting the 
respective rights of the husband and wife 
over Castile. In the middle ages, it was 
customary for the more powerful sex to 
exercise all the rights which it derived 
from the weaker, as much in sovereign- 
ties as in private possessions. But the 
Castilians were determined to maintain 
the positive and distinct prerogatives of 
their queen, to which they attached the 
independence of their nation. A com- 
promise therefore was concluded, by 
which, though, according to our notions, 
Ferdinand obtained more than a due 
share, he might consider himself as more 
strictly hmited than his father had been 
in Navarre. The names of both were to 
appear jointly in their style, and upon 
the coin, the king's taking the prece- 
dence in respect of his sex. But, in the 
royal scutcheon, the arms of Castile 
were preferred on account of the king- 
dom's dignity. Isabella had the appoint- 
ment of all civil offices in Castile ; the 
nomination of spiritual benefices ran in 
the name of both. The government was 
to be conducted by the two conjointly 
when they Avere together, or by either 
singly, in the province where one or other 
might happen to reside.* This partition 
was well preserved throughout the life 
of Isabel without mutual encroachments 
or jealousies. So rare a unanimity be- 
tween persons thus circumstanced must 
be attributed to the superior qualities of 
that princess, who, while she maintained 
a constant good understanding with a 
very ambitious husband, never relaxed 
in the exercise of her paternal authority 
over the kingdoms of her ancestors. 

Ferdinand and Isabella had no sooner 
quenched the flames of civil conquest of 
discord in Castile, than they GranaUa. 
determined to give an unequivocal proof 
to Europe of the vigour which the Span- 
ish monarchy was to display under their 



* Zurita, t. iv., fol. 224. Mariana, I. xxiv., c. 5. 



226 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IV 



government. For many years an armis- 
tice with the Moors of Granada had been 
uninterrupted. Neither John II. nor 
Henry IV. had been at leisure to think of 
aggressive hostiUties ; and the Moors 
themselves, a prey, like their Christian 
enemies, to civil war, and the feuds of 
their royal family, were content with the 
unmolested enjoyment of the finest prov- 
ince in the peninsula. If we may trust 
historians, the sovereigns of Granada 
were generally usurpers and tyrants. 
But I know not how to account for that 
vast populousness, that grandeur and 
magnificence, which distinguished the 
Mahometan kingdoms of Spain, without 
ascribing some measure of wisdom and 
beneficence to their governments. These 
southern provinces have dwindled in later 
times ; and, in fact, Spain itself is chiefly 
interesting to most travellers, for the 
monuments which a foreign and odious 
race of conquerors have left behind 
them. Granada was however disturbed 
by a series of revolutions about the time 
of Ferdinand's accession, which natural- 
ly encouraged his designs. The Moors, 
contrary to what might have been ex- 
pected from their relative strength, were 
the aggressors by attacking a town in 
Andalusia.* [A. D. 1481.] Predatory in- 
roads of this nature had hitherto been 
only retaliated by the Christians. But 
Ferdinand was conscious that his resour- 
ces extended to the conquest of Granada, 
the consummation of a struggle protract- 
ed through nearly eight centuries. Even 
in the last stage of the Moorish dominion, 
exposed on every side to invasion, en- 
feebled by a civil dissension, that led one 
party to abet the common enemy, Grana- 
da was not subdued without ten years of 
sanguinary and unremitting contest. Fer- 
tile beyond all the rest of Spain, that 
kingdom contained seventy walled towns ; 
and the capital is said, almost two cen- 
turies before, to have been peopled by 

* Zurita, t. iv., fol. 314. 



200,000 inhabitants.* Its resistance to 
such a force as that of Ferdinand is per- 
haps the best justification of the apparent 
negligence of eariier monarchs. But 
Granada was ultimately compelled to un- 
dergo the yoke. The city surrendered 
on the second of January, 1492 ; an event 
glorious not only to Spain, but to Chris- 
tendom ; and which, in the political com- 
bat of the two religions, seemed almost 
to counterbalance the loss of Constanti- 
nople. It raised the name of Ferdinand, 
and of the new monarchy which he gov- 
erned, to high estimation throughout Eu- 
rope. Spain appeared an equal compet- 
itor with France in the lists of ambition. 
These great kingdoms had for some time 
felt the jealousy natural to emulous neigh- 
bours. The house of Aragon loudly com- 
plained of the treacherous policy of Louis 
XL He had fomented the troubles of 
Castile, and given, not indeed an eflTectual 
aid, but all promises of support, to the 
Princess Joanna, the competitor of Isabel. 
Rousillon, a province belonging to Ara- 
gon, had been pledged to France by John 
II. for a sum of money. It would be te- 
dious to relate the subsequent events, or 
to discuss their respective claims to its 
possession.! At the accession of Fer- 
dinand, Louis XL still held Rousillon, and 
showed little intention to resign it. But 
Charles YIIL, eager to smooth every im- 
pediment to his Italian expedition, resto- 
red the province to Ferdinand in 1493. 
Whether, by such a sacrifice, he was able 
to lull vhe King of Aragon into acquies- 
cence, while he dethroned his relation 
at Naples, and alarmed for a moment all 
Italy with the apprehension of French 
dominion, it is not wii\iin the limits of the 
present work to inquire. 



* Zurita, t. iv., fol. 314. 

t For these transactions, see Gar^ier, Hist, de 
France, or Gaillard, Rivalite de Fran-e et d'Es- 
pagne, t. iii. The latter is the most impartial 
French writer I have ever read, in mattert where 
his own country is concerned. 



Chap. V.] 



GERMANY. 



CHAPTER V. 



HISTORY OF GERMANY TO THE DIET OF WORMS IN 1495. 



Sketch of German History under the Emperors of 
the House of Saxony.— House of P'ranconia.— 
Henry IV.— House of Svvabia. — Frederick Bar- 
barossa. — Fall of Henry the Lion.— Frederick II. 
—Extinction of House of Swabia.— Changes in 
the Germanic Constitution. — Electors. — Terri- 
torial Sovereignty of the Princes. — Rodolph of 
Hapsburg. — State of the Empire after his Time. 
—Causes of Decline of Imperial Power. — House 
of Luxemburg.— Charles IV. — Golden Bull. — 
House of Austria, — Frederick III. — Imperial 
Cities. — Provincial States. — Maximilian. — Diet 
of Worms. — Abolition of private Wars. — Im- 
perial Chamber. — Aulic Council. — Bohemia. — 
Hungary. — Switzerland. 

After the deposition of Charles the 
Separation ^at, in 888, which finally sev- 
of Germany ered the connexion between 
from France, prance and Germany,* Arnulf, 
an illegitimate descendant of Charle- 
magne, obtained the throne of the latter 
country, in which he was succeeded by 
his son Louis. t But upon the death of 
this prince in 911, the German branch of 
that dynasty became extinct. There re- 
mained indeed Charles the Simple, ac- 
knowledged as king in some parts of 
France, but rejected in others, and pos- 
sessing no personal claims to respect. 
The Germans therefore wisely deter- 
mined to choose a sovereign from among 
themselves. They were at this time 
divided into five nations, each under its 
own duke, and distinguished by difference 
of laws as well as of origin ; the Franks, 
■whose territory, comprising Franconia 
and the modern palatinate, was consid- 
ered as the cradle of the empire, and 
who seem to have arrogated some supe- 
riority over the rest, the Swabians, the 
Bavarians, the Saxons, under which name 
the inhabitants of Lower Saxony alone 
and Westphalia were included, and the 

♦ There can be no question about this in a gen- 
eral sense. But several German writers of the 
time assert, that both Eudes and Charles the Sim- 
ple, rival kings of France, acknowledged the feudal 
superiority of Arnulf Charles, says Regino, reg- 
num quod usurpaverat ex manu ejus percepit. — 
Struvius, Corpus Hist. German., p. 202, 203. 

t The German princes had some hesitation about 
the choice of Louis; but their partiality to the 
Carlovingian line prevailed. — Struvius, p. 208: 
quia reges Francorum semper ex uno genere pro- 
cedebant, says an archbishop Hatto, in writing to 
the pope. 

P8 



Lorrainers, who occupied the left bank 
of the Rhine as far as its termination. 
[A. D. 911.] The choice of these Election of 
nations in their general assem- Conrad, 
bly fell upon Conrad, duke of Franco- 
nia, according to some writers, or at 
least a man of high rank, and descended 
through females from Charlemagne.* 

Conrad dying without male issue, the 
crown of Germany was bestowed House of 
upon Henry the Fowler, duke of saxony. 
Saxony, ancestor of the three Othos, who 
followed him in direct succes- Henry the 
sion. To Henry, and to the Fowier,9i9. 
first Otho, Germany was more indebted 
than to any sovereign since Charle- 
magne. The conquest of Italy, and re- 
covery of the imperial title, are otho i. 936. 
indeed the most brilliant tro- Otho li. oi'z. 
phies of Otho the Great; but oihoni.983. 
he conferred far more unequivocal bene- 
fits upon his own country by completing 
what his father had begun, her liberation 
from the inroads of the Hungarians. 
Two marches, that of Misnia, erected by 
Henry the Fowler, and that of Austria, 
by Otho, were added to the Germanic 
territories by their victories.! 

A lineal succession of four descents 
without the least opposition, seems to 
show that the Germans were disposed to 
consider their monarchy as fixed in the 
Saxon family. Otho H. and HL had 
been chosen each in his father's life- 
time, and during infancy. The formality 
of election subsisted at that time in every 
European kingdom; and the imperfect 
rights of birth required a ratification by 
public assent. If at least France and 
England were hereditary monarchies in 



* Schmidt, Hist, des Allemands, t. ii., p. 288. 
Struvius, Corpus Historiae Germanicae, p. 210. 
The former of these writers does not consider 
Conrad as Duke of Franconia. 

t Many towns in Germany, especially on the 
Saxon frontier, were built by Henry I., who is 
said to have compelled every ninth man to take up 
his residence in them. This had a remarkable 
tendency to promote the improvement of that ter- 
ritory, and, combined with the discovery of the 
gold and silver mines of Goslar under Otho I., ren- 
dered it the richest and most important part of the 
empire. — Struvius, p. 225 and 251. Schmidt, t. ii., 
p. 322. Putter, Historical Development of the 
German Constitution, vol. i., p. 115. 



228 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V. 



the tenth century, the same may surely 
be said of Germany ; since we find the 
lineal succession fully as well observed 
in the last as in the former. But upon 
the immature and unexpected decease of 
Otho III., a momentary opposition was 
Henry II. offered to Henry, duke of Bava- 

10U2. ria, a collateral branch of the 
reigning family. He obtained the crown, 
however, by what contemporary his- 
torians call an hereditary title,* and it 
was not until his death, in 1024, that the 
house of Saxony was deemed to be ex- 
tinguished. 

No person had now any pretensions 
House of ^^^^ could interfere with the un- 
Franconia. biased suffrages of the nation ; 
^''1024' "• and accordingly a general as- 
Henry III. sembly was determined by merit 

1039. to elect Conrad, surnamed the 

1056. Salic, a nobleman of Franco- 
Henry V. nia.f From this prince sprang 

1106. three successive emperors, Hen- 
ry III., IV., and V. Perhaps the impe- 
rial prerogatives over that insubordinate 
confederacy never reached so high a 
point as in the reign of Henry HI., the 
second emperor of the house of Franco- 
nia. It had been, as was natural, the 
object of all his predecessors, not only to 
render their throne hereditary, winch, in 
effect, the nation was willing to concede, 
but to surround it with authority suffi- 
cient to control the leading vassals. 
These were the dukes of the four nations 
of Germany, Saxony, Bavaria, Swabia, 
and Franconia, and the three archbishops 
of the Rhenish cities, Mentz, Treves, and 
Cologne. Originally, as has been more 
fully shown in another place, dutchies, 
like counties, were temporary govern- 
ments, bestowed at the pleasure of the 
crown. From this first stage they ad- 
vanced to hereditary offices, and finally 
to patrimonial fiefs. But their progress 
was much slower in Germany than in 
France. Under the Saxon Une of empe- 
rors, it appears probable, that although 
it was usual, and consonant to the pre- 
vailing notions of equity, to confer a 
dutchy upon the nearest heir, yet no pos- 
itive rule enforced this upon the empe- 
ror, and some instances of a contrary 
proceeding occurred.^ But, if the royal 

* A maxima multitudine vox una respondit ; 
Henricum, Christi adjutorio, et jure haereditario, 
regnaturum. — Ditmar apud Struvium, p. 273. See 
other passages quoted in the same place. — Schmidt, 
t. ii., p. 410. 

t Conrad was descended from a daughter of 
Otho the Great, and also from Conrad I. His 
first cousin was Duke of Franconia. — Struvius. 
Schmidt. Pfeffel. 

X Schmidt, t. ii., p. 393, 403. Struvius, p. 214, 



prerogative in this respect stood higher 
than in France, there was a countervail- 
ing principle, that prohibited the empe- 
ror from uniting a fief to his domain, or 
even retaining one which he had posses- 
sed before his accession. Thus Otho the 
Great granted away his dutchy of Saxony, 
and Henry II. that of Bavaria. Otho the 
Great endeavoured to counteract the ef- 
fects of this custom, by conferring the 
dutchies that fell into his hands upon 
members of his own family. This pol- 
icy, though apparently well conceived, 
proved of no advantage to Otho ; his son 
and brother having mixed in several 
rebellions against him. It was revived, 
however, by Conrad II. and Henry III. 
The latter was invested by his father 
with the two dutchies of Swabia and 
Bavaria. Upon his own accession, he 
retained the former for six years, and 
even the latter for a short time. The 
dutchy of Franconia, which became va- 
cant, he did not regrant, but endeavoured 
to set a precedent of uniting fiefs to the 
domain. At another time, after sentence 
of forfeiture against the Duke of Bavaria, 
he bestowed that great province on his 
wife, the Emperess Agnes.* He put an 
end altogether to the form of popular 
concurrence, which had been usual when 
the investiture of a dutchy was conferred : 
and even deposed dukes by the sentence 
of a few princes, without the consent of 
the diet. I If we combine with these 
proofs of authority in the domestic ad- 
ministration of Henry III., his almost 
unlimited control over papal elections, 
or rather the right of nomination that he 
acquired, we must consider him as the 
most absolute monarch in the annals of 
Germany. 

These ambitious measures of Henry 
III. prepared fifty years of ca- unfortunate 
lamity for his son. It is easy reign of 
to perceive that the misfortunes ^^'""'^^ '^' 
of Henry IV. were primarily occasioned 
by the jealousy with which repeated vio- 
lations of their constitutional usages had 
inspired the nobility. J The mere cir- 
cumstance of Henry IV. 's minority, under 

supposes the hereditary rights of dukes to have 
commenced under Conrad I. ; but Schmidt is per- 
haps a better authority; and Struvius afterward 
mentions the refusal of Otho I. to grant the dutchy 
of Bavaria to the sons of the last duke, which, 
however, excited a rebellion, p. 235. 

♦ Schmidt, t. iii., p. 25, 37. 

t Id., p. 207. 

j In the very first year of Henry's reign, while 
he was but six years old, the princes of Saxony are 
said by Lambert of Asehaffenburg to have formed 
a conspiracy to depose him, out of resentment for 
the injuries they had sustained from his father.- 
1 Struvius, p. 306. St. Marc, t. iii., p. 248. 



Chap. V.] 



GERMANY. 



229 



the guardianship of a woman, was enough 
to dissipate whatever powers his father 
had acquired. Hanno, archbishop of 
Mentz, carried the young king away by 
force from his mother, and governed 
Germany in his name ; till another arch- 
bishop, Adalbert of Bremen, obtained 
greater influence over him. Through 
the neglect of his education, Henry grew 
up with a character not well fitted to re- 
trieve the mischief of so unprotected a 
minority ; brave indeed, well-natured, and 
affable, but dissolute beyond measure, and 
addicted to low and debauched company. 
[A. D. 1073.] He was soon involved in a 
desperate war with the Saxons, a nation 
valuing itself on its populousness and 
riches, jealous of the house of Franco- 
nia, who wore a crown that had belonged 
to their own dukes, and indignant at 
Henry's conduct in erecting fortresses 
throughout their country. 

In the progress of this war many of the 
chief princes evinced an unwillingness to 
support the emperor.* Notwithstanding 
this, it would probably have terminated, 
as other rebellions had done, with no per- 
manent loss to either party. But, in the 
middle of this contest, another far more 
memorable broke out with the Roman 
see, concerning ecclesiastical investi- 
tures. The motives of this famous quar- 
rel will be explained in a different chap- 
ter of the present work. Its effect in 
Germany was ruinous to Henry. [A. D. 
1077.] A sentence, not only of excom- 
munication, but of deposition, which Greg- 
ory VII. pronounced against him, gave a 
pretence to all his enemies, secret as well 
as avowed, to withdraw their allegiance. f 
At the head of these was Rodolph, duke 
of Swabia, whom an assembly of revolted 
princes raised to the throne. We may 
perceive, in the conditions of Rodolph's 
election, a symptom of the real principle 
that animated the German aristocracy 
against Henry IV. It was agreed that 
the kingdom should no longer be heredi- 
tary, not conferred on the son of a reign- 

* Stnivius. Schmidt. 

+ A party had been already formed who were 
meditating to depose Henry. His excommunica- 
tion came just in time to confirm their resolutions. 
It appears clearly, upon a little consideration of 
Henry IV^.'s reign, that the ecclesiastical quarrel 
was only secondary in the eyes of Germany. The 
contest against him was a struggle of the aristoc- 
racy, jealous of the imperial prerogatives which 
Coniad II. and Henry 111. had strained to the ut- 
most. Those who were in rebellion against Henry 
were not pleased with Gregory VH. Bruno, au- 
thor of a history of the Saxon war, a furious mvec- 
tive, manifests great dissatisfaction with the court 
of Rome, which he reproaches with dissimulation 
and venality. 1 



ing monarch, unless his merit should 
challenge the popular approbation.* The 
pope strongly encouraged this plan of 
rendering the empire elective, by which 
he hoped either eventually to secure the 
nomination of its chief for the Holy See, 
or, at least, by sowing the seed of civil 
dissensions in Germany, to render Italy 
more independent. Henry IV. however 
displayed greater abiUties in his adversity 
than his early conduct had promised. 
[A. D. 1080.] In the last of several deci- 
sive battles, Rodolph, though victorious, 
was mortally wounded ; and no one cared 
to take up a gauntlet which was to be 
won with so much trouble and uncer- 
tainty. The Germans were sufficiently 
disposed to submit ; but Rome persevered 
in her unrelenting hatred. At the close 
of Henry's long reign, she excited agains* 
him his eldest son, and after more than 
thirty years of hostility, had the satisfac- 
tion of wearing him down with misfortune, 
and casting out his body, as excommuni- 
cated, from its sepulchre. 

In the reign of his son Henry V. there 
is no event worthy of much at- Extinction of 
tention, except the termination the House of 
of the great contest about in- ^rancoma. 
vestitures. At his death in 1 125, the male 
line of the Franconian emperors was at 
an end. [A. D. 1125.] Frederick, duke 
of Swabia, grandson by his mother of 
Henry IV., had inherited their patrimo- 
nial estates, and seemed to represent their 
dynasty. But both the last emperors had 
so many enemies, and a disposition to 
render the crown elective prevailed so 
strongly among the leading princes, that 
Lothaire, duke of Saxony, was Election of 
elevated to the throne, though Lo'haire. 
rather in a tumultuous and irregular man- 
ner. f Lothaire, who had been engaged 
in a revolt against Henry V. and the chief 

* Hoc etiam ibi consensu communi comproba- 
tum, Romani pontificis auctoritate est corrobora- 
tum, ut regia potestas nulli per hasreditatem, sicut 
antea fuit consuetudo, cederet, sed filius regis, 
etiamsi valde dignus esset, per electionem sponta- 
neam, non per successionis hneam, rex proveniret : 
si vero non esset dignus regis filius, vel si nollet 
eum populus, quem regem facere vellet, haberet in 
potestate populus. — Bruno de Bello Saxonico, apud 
Struvium, p. 327. 

■f See an account of Lothaire's election by a con- 
temporary writer, in Stnivius, p. 357. See also 
proofs of the dissatisfaction of the aristocracy at the 
Franconian government. — Schmidt, t. iii., p. 328. 
It was evidently their determination to render the 
empire truly elective (Id., p. 335) ; and perhaps we 
may date that fundamental principle of the Ger 
manic constitution from the accession of Lothaire. 
Previously to that era, birth seems to have given 
not only a fair title to preference, but a sort of in- 
choate right, as in France, Spain, and England. 
Lothaire signed a capitulation at his accession. 



230 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V. 



of a nation that bore an inveterate hatred 
to the house of Franconia, was the natu- 
ral enemy of the new family that derived 
its importance and pretensions from that 
stock. It was the object of his reign, ac- 
cordingly, to oppress the two brothers, 
Frederick and Conrad, of the Hohen- 
stauffen or Swabian family. By this 
means he expected to secure the succes- 
sion of the empire for his son-in-law. 
Henry, surnamed the Proud, who mar- 
ried Lothaire's only child, was fourth in 
descent from Welf, son of Azon, marquis 
of Este, by Cunegonda, heiress of a dis- 
tinguished family, the Welfs of Altorf in 
Swabia. Her son was invested with the 
dutchy of Bavaria in 1071. His descend- 
ant, Henry the Proud, represented also, 
through his mother, the ancient dukes 
of Saxony, surnamed Billung, from whom 
he derived the dutchy of Luneburg. The 
wife of Lothaire transmitted to her daugh- 
ter the patrimony of Henry the Fowler, 
consisting of Hanover and Brunswick. 
Besides this great dowry, Lothaire be- 
stowed upon his son-in-law the dutchy of 
Saxony, in addition to that of Bavaria.* 

This amazing preponderance, however, 
tended to alienate the princes of Ger- 
many from Lothaire's views in favour of 
Henry ; and the latter does not seem to 
have possessed abilities adequate to his 
eminent station. On the death of Lo- 
thaire in 1138, the partisans of the house 
of Swabia made a hasty and irregular 
election of Conrad, in which the Saxon 
House of faction found itself obliged to 
Swabia. acquiesce.f The new emperor 
Conrad III. availed himself of the jealousy 
which Henry the Proud's aggrandizement 
had excited. [A. D. 1138.] Under pre- 
tence that two dutchies could not legally 
be held by the same person, Henry was 
summoned to resign one of them ; and on 
his refusal, the diet pronounced that he 
had incurred a forfeiture of both. Henry 
made but little resistance, and, before his 
death, which happened soon afterward, 
saw himself stripped of all his hereditary 
as well as acquired possessions. Upon 
Original of this occasion, the famous names 
Gueifs and of Guelf and Ghibelin were first 
Ghibeiins. Yieard, which were destined to 
keep alive the flame of civil dissension in 
far distant countries, and after their mean- 
ing had been forgotten. The Gueifs or 
Welfs were, as I have said, the ancestors 
of Henry, and the name has become a 
sort of patronymic in his family. The 

* Pfeffel, Abr^g6 Chronologique de I'Histoire 
d'Allemagne, t. i., p. 269 (Paris, 1777). Gibbon's 
Antiquities of the House of Brunswick. 

t Schmidt. 



word Ghibelin is derived from Wibelung, 
a town in Franconia, whence the empe- 
rors of that line are said to have sprung. 
The house of Swabia was considered in 
Germany as representing that of Fran- 
conia ; as the Gueifs may, without much 
impropriety, be deemed to represent the 
Saxon line.* 

Though Conrad IIL left a son, the 
choice of the electors fell, at Frederick 
his own request, upon his neph- arbarossa, 
ew, Frederick Barbarossa.-j- The most 
conspicuous events of this great empe- 
ror's life belong to the history of Italy. 
At home he was feared and respected; 
the imperial prerogatives stood as high 
during his reign, as, after their previous 
decline, it was possible for a single man 
to carry them.| But the only circum- 
stance which appears memorable enough 
for the present sketch, is the second fall 
of the Gueifs. [A. D. 1178.] Fail of Hen- 
Henry the Lion, son of Henry ^y the Uon. 
the Proud, had been restored by Conrad 
HI. to his father's dutchy of Saxony, 
resigning his claim to that of Bavaria, 
which had been conferred on the Mai'- 
grave of Austria. This renunciation, 
which indeed was only made in his name 
during childhood, did not prevent him 
from urging the Emperor Frederick to 
restore the whole of his birthright ; and 
Frederick, his first cousin, whose life he 
had saved in a sedition at Rome, was in- 
duced to comply with this request in 1156. 
Far from evincing that pohtical jealousy 
which some writers impute to him, the 
emperor seems to have carried his gen- 
erosity beyond the limits of prudence. 
For many years their union was appa- 
rently cordial. But, whether it was that 
Henry took umbrage at part of Freder- 
ick's conduct,^ or that mere ambition ren- 
dered him ungrateful, he certainly aban- 
doned his sovereign in a moment of dis- 
tress, refusing to give any assistance in 
that expedition into Lombardy, which end- 
ed in the unsuccessful battle of Legnano. 
p'rederick could not forgive this injury; 
and taking advantage of complaints which . 
Henry's power and haughtiness had pro- 
duced, summoned him to answer charges 
in a general diet. The duke refused to 
appear, and being adjudged contumacious, 
a sentence of confiscation, similar to that 
which ruined his father, fell upon his 
head ; and the vast imperial fiefs that he 



» Struvius, p. 370 and 378. t Ibid. 

t Pfeflfel, p. 341. 

(j Frederick had obtained the succession of Welf, 
marquis of Tuscany, uncle of Henry the Lion, who 
probably considered himself as entitled to expect it. 
— Sclimidt, p. 427. 



Chap. V.] 



GERMANY. 



231 



possessed were shared among some po- 
tent enemies.* He made an ineffectual 
resistance ; like his fatlier, he appears to 
have owed more to fortune than to na- 
ture ; and, after three years' exile, was 
obliged to remain content with the res- 
toration of his allodial estates in Saxony. 
These, fifty years afterward, were con- 
verted into imperial fiefs, and became 
the two dutchies of the house of Bruns- 
wick, the hneal representatives of Henry 
the Lion, and inheritors of the name of 
Guelf.f 

Notwithstanding the prevailing spirit 
of the German oligarchy, Frederick Bar- 
barossa had found no difficulty in procu- 
ring the election of his son Henry, even 
during infancy, as his successor. J [A. D. 
1190.] The fall of Henry the 
Henry VI. j^j^j^ j^^^^j greatly weakened the 
ducal authority in Saxony and Bavaria ; 
the princes who acquired that title, es- 
pecially in the former country, finding 
that the secular and spiritual nobility of 
the first class had taken the opportunity 
to raise themselves into an immediate 
dependance upon the empire. Henry VI. 
came therefore to the crown with con- 
siderable advantages in respect of pre- 
rogative ; and these inspired him with a 
bold scheme of declaring the empire he- 
reditary. One is more surprised to find 
that he had no contemptible prospect of 
success in this attempt ; fifty-two princes, 
and even what appears hardly credible, 
the See of Rome, under Clement HI., 
having been induced to concur in it. 
But the Saxons made so vigorous an op- 
position, that Henry did not think it 
advisable to persevere.^ He procured, 
however, the election of his son Freder- 
ick, an infant only two years old. But, 
the emperor dying almost immediately, 
a powerful body of princes, supported by 
Pope Innocent HI., were desirous to 
withdraw their consent. [A. D. 1197.] 
Philip, duke of Swabia, the late king's 

* Fiilter, in his Historical Development of the 
Constitution of the German Empire, is inclined to 
consider Henry the Lion as sacrificed to the empe- 
ror's jealousy of the Guelfs, and as illegally pro- 
scribed by the diet. But the provocations he had 
given Frederick are undeniable; and, without pre- 
tending to decide on a question of German history, 
I do not see that there was any precipitancy or 
manifest breach of justice in the course of pro- 
ceedings against him. Schmidt, Pfeflbl, and Stru- 
vius do not represent the condemnation of Henry 
as unjust. 

t Putter, p. 220. % Struvius, p. 418. 

(j Struvius, p, 424. Impetravit a subditis, ut, 
cessante pristina Palatinorum electione, imperium 
in ipsius posteritatem, distincta proximorum suc- 
cessione, transiret, et sic in ipso terminus esset 
clectionis, principiumque successivae dignitatis. — 
Gervas. Tilburiens., ibidem. i 



Drother, unable to secure his nc- phuip and 
phew's succession, brought about <Jtho iv. 
liis own election by one party, while 
another chose Otho of Brunswick, young- 
er son of Henry the Lion. This double 
election renewed the rivalry between 
the Guelfs and Ghibelins, and threw Ger- 
many into confusion for several years. 
Philip, whose pretensions appear to be 
the more legitimate of the two, gained 
ground upon his adversary, notwithstand- 
ing the opposition of the pope, till he 
was assassinated, in consequence of a 
private resentment. [A. D. 1208.] Otho 
IV. reaped the benefit of a crime in 
which he did not participate ; and be- 
came for some years undisputed sover- 
eign. But, having offended the pope 
by not entirely abandoning his imperial 
rights over Italy, he had, in the latter 
part of his reign, to contend against 
Frederick, son of Henry VI., who, having 
grown up to manhood, came into Germa- 
ny as heir of the house of Swabia, and, 
what was not very usual in his own his- 
tory or that of his family, the favoured 
candidate of the Holy See. Otho IV, 
had been almost entirely deserted, ex- 
cept by his natural subjects, when his 
death, in 1218, removed every difficulty, 
and left Frederick II. in the peaceable 
possession of Germany. 

The eventful life of Frederick II. was 
chiefly passed in Italy. To 
preserve his hereditary domin- ^^ "^'^ 
ions, and chastise the Lombard cities, 
were the leading objects of his political 
and military career. He paid therefore 
but little attention to Germany, from 
which it was in vain for any emperor to 
expect effectual assistance towards ob- 
jects of his own. Careless of preroga- 
tives which it seemed hardly worth an ef- 
fort to preserve, he sanctioned the inde- 
pendence of the princes, which may be 
properly dated from his reign. In return, 
they readily elected his son Henry king 
of the Romans ; and, on his being imph- 
cated in a rebellion, deposed him with 
equal readiness, and substituted his broth- 
er Conrad at the emperor's request.* 
But in the latter part of Frederick's reign, 
the deadly hatred of Rome penetrated be- 
yond the Alps. After his sol- consc- 
emn deposition in the council quences or 
of Lyons, he was incapable, in o^Lyms"" 
ecclesiastical eyes, of holding 
the imperial sceptre. [A. D. 1245.] In- 
nocent IV. found however some difficulty 
in setting up a rival emperor. Henry, 
landgrave of Thuringia, made an indiffer- 



*■ Struvius, p. 457. 



232 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V 



ent figure in this character. [A. D. 1248.] 
Upon his death, William, count of Hol- 
land, was chosen by the party adverse to 
Frederick and his son Conrad ; and, after 
the emperors death, he had some suc- 
cess against the latter. It is hard indeed 
to say that any one was actually sover- 
eign for twenty-two years that followed 
the death of Frederick II. ; a period of 
contested title and universal anarchy, 
Grand in- which is usually denominated 
terrcgnum. the grand interregnum. [A. D. 
1250-1272.] On the decease of William 
of Holland, in 1256, a schism among the 
electors produced the double choice of 
Richard of Richard, earl of Cornwall, and 
Cornwall. Alfonso X., king of Castile. It 
seems not easy to determine which of 
these candidates had a legal majority of 
votes,* but the subsequent recognition 
of almost all Germany, and a sort of pos- 
session evidenced by public acts, which 
have been held valid, as well as the gener- 
al consent of contemporaries, may justify 
us in adding Richard to the imperial list. 
The choice indeed was ridiculous, as he 
possessed no talents which could compen- 
sate for his want of power ; but the elec- 
tors attained their objects; to perpetuate 
a state of confusion by which their own 
independence was consolidated, and to 
plunder without scruple a man, like Di- 
dius at Rome, rich and foolish enough to 
purchase the first place upon earth. 

That place, indeed, was now become a 
State of the mockery of greatness. For 
Germanic more than two centuries, not- 
consiuution. withstanding the temporary in- 
fluence of Frederick Barbarossa and his 
son, the imperial authority had been in a 
state of gradual decay. From the time 
of Frederick II. it had bordered upon ab- 
solute insignificance ; and the more pru- 
dent German princes were slow to can- 
vass for a dignity so little accompanied 

* The election ought legally to have been made 
at Frankfort. But the Elector of Treves, having 
got possession of the town, shut out the archbish- 
ops of Mentz and Cologne, and the count palatine, 
on pretence of apprehending violence. They met 
under the walls, and there elected Richard. After- 
ward Alfonso was chosen by the votes of Treves, 
Saxony, and Brandenburg. Historians differ about 
the vote of Oltocar, king of Bohemia, which would 
turn the scale. Some time after the election, it is 
certain that he was on the side of Richard. Per- 
haps we may collect from the opposite statement 
in Struvius, p. 504, that the proxies of Ottocar had 
voted for Alfonso, and that he did not think fit to 
recognise their act. 

There can be no doubt that Richard was de facto 
sovereign of Germany ; and it is singular that 
Struvius should assert the contrary, on the author- 
ity of an instrument of Rodolph, which expressly 
designates him king, per quondam Richardum re- 
gem illustrem.— Struv., p. 502. 



by respect. The changes wrought in the 
Germanic constitution during the period 
of the Swabian emperors chiefly consist 
in the establishment of an oligarchy of 
electors, and of the territorial sovereignty 
of the princes. 

1. At the extinction of the Franconian 
line by the death of Henry V., it 
was determined by the German ^'•='='°''^- 
nobility to make their empire practically 
elective, admitting no right, or even nat- 
ural pretension, in the eldest son of a 
reigning sovereign. Their choice upon 
former occasions had been made by free 
and general suffrage. But it may be pre- 
sumed that each nation voted unanimous- 
ly, and according to the disposition of its 
duke. It is probable, too, that the lead- 
ers, after discussing in previous delibera- 
tions the merits of the several candidates, 
submitted their own resolutions to the 
assembly, which would generally concur 
in them without hesitation. At the elec- 
tion of Lothaire, in 1124, we find an evi- 
dent instance of this previous choice, or, 
as it was called, prataxation, from which 
the electoral college of Germany has 
been derived. The princes, it is said, 
trusted the choice of an emperor to ten 
persons, in whose judgment they prom- 
ised to acquiesce.* This precedent was, 
in all likelihood, followed at all subse- 
quent elections. The proofs indeed are 
not perfectly clear. But in the famous 
privilege of Austria, granted by Frederick 
I., in 1156, he bestows a rank upon the 
newly created duke of that country, im- 
mediately after the electing princes (post 
principes electores) ;f a strong presump- 
tion that the right of prajtaxation was not 
only established, but limited to a few def- 
inite persons. In a letter of Innocent 
HI. concerning the double election of 
Philip and Otho, in 1198, he asserts the 
latter to have had a majority in his favour 
of those to whom the right of election 
chiefly belongs (ad quos principaliter 
spectat electio).| And a law of Otho, in 
1208, if it be genuine, appears to fix the 
exclusive privilege of the seven electors. § 
Nevertheless, so obscure is this important 
part of the Germanic system, that we 
find four ecclesiastical and two secular 
princes concurring with the regular elect- 
ors in the act, as reported by a contem- 
porary writer, that creates Conrad, son 
of Frederick II., king of the Romans. [j 
This, however, may have been an irregu- 

* Struv., p. 357. Schmidt, t. iii., p. 331. 
t Schmidt, t. iii., p. 390. J Pfeflel, p. 360. 
i) Schmidt, t. iv., p. 80. 

II This is not mentioned in Struvius, or the other 
German writers. But Denina (Rivoluzioni d'lta- 



Chap. V.] 



GERMANY. 



233 



lar deviation from the principle already 
established. But it is admitted, that all 
the princes retained, at least during the 
twelfth century, their consenting suf- 
frage ; like the laity in an episcopal elec- 
tion, whose approbation continued to be 
necessary long after the real power of 
choice had been withdrawn from them.* 
It is not easy to account for all the 
circumstances that gave to seven spirit- 
ual and temporal princes this distinguish- 
ed pre-eminence. The three archbish- 
ops, Mentz, Treves, and Cologne, were 
always indeed at the head of the German 
church. But the secular electors should 
naturally have been the dukes of four 
nations : Saxony, Franconia, Swabia, and 
Bavaria. We find, however, only the 
first of these in the undisputed exercise 
of a vote. It seems probable that, when 
the electoral princes came to be distin- 
guished from the rest, their privilege was 
considered as peculiarly connected with 
the discharge of one of the great offices 
in the imperial court. These were at- 
tached, as early as the diet of Mentz, in 
1184, to the four electors, who ever af- 
terward possessed them : the Duke of 
Saxony having then officiated as arch- 
marshal, the Count Palatine of the Rhine 
as arch-steward, the King of Bohemia as 
arch-cup-bearer, and the Margrave of 
Brandenburg as arch-chamberlain of the 
empire. t But it still continues a prob- 
lem why the three latter offices, with the 
electoral capacity as their incident, should 
not rather have been granted to the dukes 
of Franconia, Swabia, and Bavaria. I 
have seen no adequate explanation of 
this circumstance ; which may perhaps 
lead us to presume that the right of pre- 
election was not quite so soon confined 
to the precise number of seven princes. 
The final extinction of two great origi- 
nal dutchies, Franconia and Swabia, in 
the thirteenth century, left the electoral 
rights of the count palatine and the Mar- 
grave of Brandenburg beyond dispute. 
But the dukes of Bavaria continued to 
claim a vote in opposition to the kings 
of Bohemia. At the election of Rodolph 
in 1272, the two brothers of the house of 
Wittelsbach voted separately, as count 
palatine, and Duke of Lower Bavaria. 
Ottocar was excluded upon this occasion ; 
and it was not till 1290 that the suffrage 

lia, 1. xi., c. 9) quotes the style of the act of elec- 
tion from the Chronicle of Francis Pippin. 

* This is manifest by the various passages rela- 
ting to the elections of Philip and Otlio, quoted 
by Struvius, p. 428, 430. See too Pfeffel, ubi su- 
pra. Schmidt, t. iv., p. 79. 

t Schmidt, t. iv., p. 78. 



of Bohemia was fully recognised. The 
palatine and Bavarian branches, howev- 
er, continued to enjoy their family vote 
conjointly, by a determination of Rodolph ; 
upon which Louis of Bavaria shghtly in- 
novated, by rendering the suff'rage alter- 
nate. But the golden bull of Charles IV. 
put an end to ail doubts on the rights of 
electoral houses, and absolutely excluded 
Bavaria from voting. The limitation to 
seven electors, first perhaps fixed by ac- 
cident, came to be invested with a sort 
of mysterious importance, and certainly 
was considered, until times comparative- 
ly recent, as a fundamental law of the 
empire.* 

2. It might appear natural to expect 
that an oligarchy of seven per- 
sons, who had thus excluded unm'ied^n- 
their equals from all share in fenornobu- 
the election of a sovereign, "^" 
would assume still greater authority, and 
trespass farther upon the less powerful 
vassals of the empire. But while the 
electors were establishing their peculiar 
privilege, the class immediately inferior 
raised itself by important acquisitions of 
power. The German dukes, even after 
they became hereditary, did not succeed 
in compelhng the chief nobility within 
their limits to hold their lands in fief so 
completely as the peers of France had 
done. The nobles of Swabia refused to 
follow their duke into the field against 
the Emperor Conrad II. f Of this aristoc- 
racy the superior class were denominated 
princes ; an appellation which, after the 
eleventh century, distinguished them 
from the untitled nobility, most of whom 
were their vassals. They were constit- 
uent parts of all diets, and though grad- 
ually deprived of their origmal participa- 
tion in electing an emperor, possessed, 
in all other respects, the same rights as 
the dukes or electors. Some of them 
were fully equal to the electors, in birth 
as well as extent of dominions ; such as 
the princely houses of Austria, Hesse, 
Brunswick, and Misnia. By the division 
of Henry the Lion's vast territories,! and 
by the absolute extinction of the Swabian 
family in the following century, a great 
many princes acquired additional weight. 
Of the ancient dutchies only Saxony and 
Bavaria remained ; the former of which 
especially was so dismembered, that it 
was vain to attempt any renewal of the 

* Schmidt, t. iv., p. 78, 568. Putter, p. 274. 
Pfeffel, p. 435, 565. Struvius, p. 51 1. 

t PfetTel, p. 209. 

X See the arrangements made in consequence 
of Henry's forfeiture, which gave quite a new face 
to Germany, in Pfeffel, p. 234, also p. 437. 



234 



EUKoi>E DURING THE MIDDLE AGES. 



[Chap. V. 



ducal jurisdiction. That of the emperor, 
formerly exercised by the counts pala- 
tine, went almost equally into disuse du- 
ring the contest between Philip and 
Otho IV. The princes accordingly had 
acted with sovereign independence with- 
in their own fiefs before tlie reign of 
Frederick II. ; but the legal recognition 
of their immunities was reserved for two 
edicts of that emperor ; one in 1220, re- 
lating to ecclesiastical, and the other in 
1232, to secular princes. B)^ these he 
engaged neither to levy the customary 
imperial dues, nor to permit the jurisdic- 
tion of the palatine judges, within the 
limits of a state of the empire ;* conces- 
sions that amounted to little less than an 
abdication of his own sovereignty. From 
this epoch the territorial independence of 
the states may be dated. 

A class of titled nobility, inferior to the 
princes, were the counts of the empire, 
■who seem to have been separated from 
the former in the twelfth century, and to 
have lost at the same time their right of 
voting in the diets. f In some parts of 
Germany, chiefly in Franconia and upon 
the Rhine, there always existed a very 
numerous body of lower nobility ; unti- 
tled, at least till modern times, but sub- 
ject to no superior except the emperor. 
These are supposed to have become im- 
mediate, after the destruction of the house 
of Swabia, within whose dutchies they 
had been comprehended. J 

[A. D. 1272.] A short interval elapsed 
Election of after the death of Richard of 
Rodoiph of Cornwall, before the electors 
Hapsburg. could be induced, by the deplo- 
rable state of confusion into which Ger- 
many had fallen, to fill the imperial 
throne. Their choice was however the 
best that could have been made. It fell 
upon Rodoiph, count of Hapsburg, a 
prince of very ancient family, and of 
considerable possessions as well in Swis- 
Berland as upon each bank of the upper 
Rhine, but not sufficiently powerful to 
alarm the electoral oligarchy. Rodoiph 
was brave, active, and just ; but his char- 
acteristic quality appears to have been 
good sense, and judgment of the circum- 
stances in which he was placed. Of this 
he gave a signal proof in relinquishing 
the favourite project of so many prece- 
ding emperors, and leaving Italy alto- 



* Pfeffel, p. 384. Putter, p. 233. 

t In the instruments relating to the election of 
Otho IV., the princes sign their names, Ego N. 
elegi et subscripsi. But the counts only as follows : 
Ego N. consensi et subscripsi. — Pfeffel, p. 360. 

X Pfeffel, p. 445. Putter, p. 254. Struvius, p. 
611. 



gether to itself. At home he manifested 
a vigilant spirit in administering justice, 
and is said to have destroyed seventy 
strongholds of noble robbers in Thurin- 
gia and other parts, bringing many of the 
criminals to capital punishment.* But 
he wisely avoided giving offence to the 
more powerful princes; and during his 
reign there were hardly any rebellions 
in Germany. 

It was a very reasonable object of 
every emperor to aggrandize his investment 
family by investing his near ^Ib^'jJ^S 
kindred with vacant fiefs ; but dmctiy of 
no one was so fortunate in his Austria, 
opportunities as Rodoiph. At his acces- 
sion, Austria, Styria, and Carniola were 
in the hands of Oltocar, king of Bohe- 
mia. These extensive and fertile coun- 
tries had been formed into a march or 
margraviate, after the victories of Otho 
the Great over the Hungarians. Frederick 
Barbarossa erected them into a dutchy, 
with many distinguished privileges, espe- 
cially that of female succession, hitherto 
unknown in the feudal principalities of 
Germany.! Upon the extinction of the 
house of Bamberg, which had enjoyed 
this dutchy, it was granted by Frederick 
II. to a cousin of his own name ; after 
whose death a disputed succession gave 
rise to several changes, and ultimately 
enabled Ottocar to gain possession of the 
country. Against this King of Bohemia 
Rodoiph waged two successive wars, and 
recovered the Austrian provinces, which, 
as vacant fiefs, he conferred, with the 
consent of the diet, upon his son Albert. J 
[A. D. 1283.] 

* Struvius, p. 530. Co.te's Hist, of House of 
Austria, p. 57. This valuable work contains a full 
and interesting account of Rodolph's reign. 

t The privileges of Austria were granted to the 
Margrave Henry in 1156, by way of indemnity for 
his restitution of Bavaria to Henry the Lion. The 
territory between the Inn and the Ems was sap- 
arated from the latter province, and annexed to 
Austria at this tune. The Dukes of Austria are 
declared equal in rank to the palatine archdukea 
(archi-ducibus palatinis). This expression gave a 
hint to the Duke Rodoiph IV. to assume the title 
of Archduke of Austria.— Schmidt, t. iii., p. 390. 
Frederick II. even created the Duke of Austria 
king : a very curious fact, though neither he nor 
his successors ever assumed the title. — Struvius, 
p. 463. The instrument runs as follows : Duca- 
tus Austrise et Styriae, cum pertmentiis et termi- 
nis suis quot hactenus habuit, ad nomen et honorem 
regium transferentes, te hactenus ducatuum, prae- 
dictorum ducem, de potestatis nostra plenitudine et 
magnificentia speciali promovemus in regem, per 
libertates et jura praedictum regnum tuum pia;sen- 
tis epigrammatis auctoritate donantes, qua; regiam 
deceant dignitatem : ut tamen ex honore quein tibi 
libenter addimus, nihil honoris et juris nostri dia 
dematis aut imperii subtrahatur. 
X Struvius, p. 525. Schmidt. Coxe 



Chap. V.] 



GERMANY. 



235 



Notwithstanding tht merit and popu- 
state of the Parity of Rodolph, the electors 
empire arter refused to choose his son King 
Kodoiph. of ^Y^Q Romans in his lifetime ; 
and, after his death, determined to avoid 
Adoiphus the appearance of hereditary 

129'2. succession, put Adoiphus of 
^ms'' Nassau upon the throne. There 
Henry Vii. is very little to attract notice 
.1^308.^ in the domestic history of the 

TsM. ' empire during the next two 
Charles IV centuries. From Adoiphus to 
WenLaus Sigismund, every cmperor had 

1378. either to struggle agamst a 
^Hoo competitor, claiming the ma- 
Sigismund jority of votes at his election, 

i'ii4. or against a combination of 
the electors to dethrone him. The impe- 
rial authority became more and more in- 
effective ; yet it was frequently made a 
subject of reproach against the emperors, 
that they did not maintain a sovereignty 
to which no one was disposed to submit. 

It may appear surprising, that the Ger- 
manic confederacy, under the nominal 
supremacy of an emperor, should have 
been preserved in circumstances appa- 
rently so calculated to dissolve it. But, 
besides the natural effect of prejudice 
and a famous name, there were sufficient 
reasons to induce the electors to pre- 
serve a form of government in which 
they bore so decided a sway. Accident 
had in a considerable degree restricted 
the electoral suffrages to seven princes. 
Without the college, there were houses 
more substantially powerful than any 
within it. The dutchy of Saxony had 
been subdivided by repeated partitions 
among children, till the electoral right 
was vested in a prince who possessed 
only the small territory of Wittenberg. 
The great families of -Austria, Bavaria, 
and Luxemburg, though not electoral, 
were the real heads of the German body ; 
and though the two former lost much of 
their influence for a time through the per- 
nicious custom of partition, the empire 
seldom looked for its head to any other 
house than one of these three. 

While the dutchies and counties of Ger- 
Custom of many retained their original char- 
paniuon. acter of offices or governments, 
they were of course, even though consid- 
ered as hereditary, not subject to parti- 
tion among children. When they ac- 
quired the nature of fiefs, it was still con- 
sonant to the principles of a feudal ten- 
ure, that the eldest son should inherit ac- 
cording to the law of primogeniture ; an 
inferior provision, or appanage, at most, 
being reserved for the younger children. 
The law of England favourp'l the eldest 



exclusively ; that of France gave him 
great advantages. But in Germany a dif- 
ferent nile began to prevail about the 
thirteenth century.* An equal partition 
of the inheritance, without the least re- 
gard to priority of birth, was the general 
law of its principalities. Sometimes this 
was effected by undivided possession, or 
tenancy in common, the brothers resi- 
ding together and reigning jointly. This 
tended to preserve the integrity of domin- 
ion ; but as it was frequently incommo- 
dious, a more usual practice was to di- 
vide the territory. From such partitions 
are derived those numerous independent 
principalities of the same house, many 
of which still subsist in Germany. In 
1589, there were eight reigning princes 
of the palatine family ; and fourteen, in 
1675, of that of Saxony.f Originally, 
these partitions were in general absolute 
and without reversion ; but, as their ef- 
fect in weakening families became evi- 
dent, a practice was introduced of ma- 
king compacts of reciprocal succession, 
by which a fief was prevented from es- 
cheating to the empire, until all the male 
posterity of the first feudataiy should be 
extinct. Thus, while the German em- 
pire survived, all the princes of Hesse or 
of Saxony had reciprocal contingencies 
of succession, or what our lawyers call 
cross-remainders, to each other's domin- 
ions. A different system was gradually 
adopted. By the Golden Bull of Charles 
IV., the electoral territory, that is, the 
particular district to which the electoral 
suffrage was inseparably attached, be- 
came incapable of partition, and was to 
descend to the eldest son. In the fif- 
teenth century, the present house of 
Brandenburg set the first examplp of es- 
tablishing primogeniture by law ; the 
principalities of Anspach and Bayreuth 
were dismembered from it for the benefit 
of younger branches ; but it was declared 
that all the other dominions of the family 
should for the future belong exclusively 
to the reigning elector. This politic 
measure was adopted in several other 
families; but, even in the sixteenth cen- 
tury, the prejudice was not removed, and 
some German princes denounced curses 
on their posterity if they should introduce 
the impious custom of primogeniture. :{: 
Weakened by these subdivisions, the 

* Schmidt, t. iv., p. 66. Pfeftel, p. 289, main- 
tains that partitions were not introduced till the 
latter end of the thirteenth century. This may 
be tnie, as a general rule ; but I find the house of 
Baden divided into two branches, Baden and Hoch- 
berg, in 1190, with rights of mutual reversion. 

tPfeflel, ib. Putter, p. 189. tW., p.280. 



236 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V. 



principalities of Germany in the four- 
teenth and fifteenth centuries shrink to a 
more and more diminutive size in the 
scale of nations. But one family, the 
most illustrious of the former age, was 
less exposed to this enfeebling system. 
House of Henry VII., count of Luxem- 
Luxemburg. burg, a man of much more per- 
sonal merit than hereditary importance, 
was elevated to the empire in 1308. Most 
part of his short reign he passed in Italy ; 
but he had a fortunate opportunity of ob- 
taining the crown of Bohemia for his 
«on. John, king of Bohemia, did not 
himself wear the imperial crown ; but 
three of his descendants possessed it 
with less interruption than could have 
been expected. His son Charles IV. 
succeeded Louis of Bavaria in 1347; not 
indeed without opposition, for a double 
election and a civil war were matters of 
course in Germany. Charles IV. has 
been treated with more derision by his 
contemporaries, and consequently by 
later writers, than almost any prince in 
history ; yet he was remarkably success- 
ful in the only objects that he seriously 
pursued. Deficient in personal courage, 
insensible of humiliation, bending with- 
out shame to the pope, to the Italians, to 
the electors, so poor and so little rever- 
enced as to be arrested by a butcher at 
Worms for want of paying his demand, 
Charles IV. affords a proof that a cei'tain 
dexterity and cold-blooded perseverance 
may occasionally supply, in a sovereign, 
the want of more respectable qualities. 
He has been reproached with neglecting 
the empire. But he never designed to 
trouble himself about the empire, except 
for his private ends. He did not neglect 
the kingdom of Bohemia, to which he al- 
most seemed to render Germany a prov- 
ince. Bohemia had been long consid- 
ered as a fief of the empire, and indeed 
could pretend to an electoral vote by no 
other title. Charles, however, gave the 
states by law the right of choosing a king, 
on the extinction of the royal family, 
which seems derogatory to the imperial 
prerogative.* It was much more mate- 
rial that, upon acquiring Brandenburg, 
partly by conquest and partly by a com- 
pact of succession in 1373, he not only 
invested his sons with it, which was con- 
formable to usage, but annexed that elec- 
torate for ever to the kingdom of Bohe- 
mia.! He constantly resided at Prague, 
where he founded a celebrated university, 
and embellished the city with buildings. 

* Struvius, p. 641. 

t Pfeffel, p. 575. Schmidt, t. iv., p. 595. 



This kingdom, augmented also during his 
reign by the acquisition of Silesia, he be- 
queathed to his son Wenceslaus, for 
whom, by pliancy towards the electors 
and the court of Rome, he had procured, 
against all recent example, the imperial 
succession.* 

The reign of Charles IV. is distinguish- 
ed in the constitutional history of the 
empire by his Golden Bull ; an in- Golden 
strument which finally ascertained B""- 
the prerogatives of the electoral college. 
[A. D. 1355.] The Golden Bull termina- 
ted the disputes which had arisen be- 
tween different members of the same 
house as to their right of suffrage, which 
was declared inherent in certain definite 
territories. The number was absolutely 
restrained to seven. The place of legal 
imperial elections was fixed at Frankfort ; 
of coronations, at Aix-la-Chapelle ; and 
the latter ceremony was to be performed 
by the Archbishop of Cologne. These 
regulations, though consonant to ancient 
usage, had not always been observed, 
and their neglect had sometimes excited 
questions as to the validity of elections. 
The dignity of elector was enhanced by 
the Golden Bull as highly as an imperial 
edict could carry it ; they were declared 
equal to kings, and conspiracy against 
their persons incurred the penalty of high 
treason. t Many other privileges are 
granted to render them more completely 
sovereign within their dominions. It 
seems extraordinary that Charles should 
have voluntarily elevated an oligarchy, 
from whose pretensions his predecessors 
had frequently suffered injury. But he 
had more to apprehend from the two 
great families of Bavaria and Austria, 
whom he relatively depressed by giving 
such a preponderance to the seven elec- 
tors, than from any members of the col- 
lege. By this compact with Branden- 
burg he had a fair prospect of adding a 
second vote to his own ; and there was 
more room for intrigue and management, 
which Charles always preferred to arms, 
with a small number, than with the whole 
body of princes. 

The next reign, nevertheless, evinced 
the danger of investing the elec- Deposirion 
tors with such preponderating of Wcn- 
authority. Wenceslaus, a su- '^<'s'""3. 
pine and voluptuous man, less respected, 
and more negligent of Germany, if pos- 



* Struvius, p. 637. 

t Pfeffel, p. 565. Putter, p. 271. Schmidt, t. 
iv., p. 566. The Golden Bull not only fixed the 
palatine vote, in absolute exclusion of Bavaria, but 
settled a controversy of long standing between the 
two branches of the house of Saxony, Wittenberg 
and Lauenberg, in favour of the former. 



Chap, v.] 



GERMANY. 



237 



sible, than his father, was regularly de- 
posed by a majority of the electoral col- 
lege in 1400. This right, if it is to be 
considered as a right, they had already 
used against Adolphus of Nassau in 1298, 
and against Louis of Bavaria in 1346. 
They chose Robert count palatine in- 
stead of Wenceslaus; and though the 
latter did not cease to have some adhe- 
rents, Robert has generally been counted 
among the lawful emperors.* Upon his 
death the empire returned to the house of 
Luxemburg; Wenceslaus himself waiv- 
ing his right in favour of his brother Si- 
gismund, king of Hungary. f 

The house of Austria had hitherto giv- 
Houseof en but two emperors to Germa- 
Ausiria. ^y^ Rodolph, its founder, and his 
son Albert, whom a successful rebellion 
elevated in the place of Adolphus. Upon 
the death of Henry of Luxemburg, in 
1313, Frederick, son of Albert, disputed 
the election of Louis, duke of Bavaria, 
alleging a majority of genuine votes. 
This produced a civil war, in which the 
Austrian party were entirely worsted. 
Though they advanced no pretensions to 
the imperial dignity during the rest of 
the fourteenth century, the princes of 
that line added to their possessions Ca- 
rinthia, Istria, and the Tyrol. As a coun- 
terbalance to these acquisitions, they lost 
a great part of their ancient inheritance 
by unsuccessful wars with the Swiss. 
According to the custom of partition, so 
injurious to princely houses, their domin- 
ions were divided among three branches : 
one reigning in Austria, a second in Styria 
and the adjacent provinces, a third in the 
Tyrol and Alsace. [A. D. 1438.] 

ert . rpj^jg jjj^(j jj^ g^ considerable degree 

eclipsed the glory of the house of Haps- 
burg. But it was now its destiny to re- 
vive, and to enter upon a career of pros- 
perity which has never since been per- 
manently interrupted. Albert, duke of 
Austria, who had married Sigismund's 
only daughter, the queen of Hungary and 
Bohemia, was raised to the imperial 
throne upon the death of his father-in- 



* Many of the cities, besides some princes, con- 
tinued to recognise Wenceslaus throughout the hfe 
of Robert ; and the latter was so much considered 
as a usurper by foreign states, that his ambassa- 
dors were refused admittance at the council of Pisa. 
— Struvius, p. 658. 

t This election of Sigismund was not uncontest- 
ed : Josse, or Jodocus, margrave of Moravia, hav- 
ing been chosen, as far as appears, by a legal major- 
ity. However, his death, within three months, re- 
moved the difficulty ; and Josse, who was not crown- 
ed at Frankfort, has never been reckoned among 
the emperors, though modern critics agree that his 
title was legitimate. — Struv., p. 684. Pfefiel, p. 
612. 



law in 1437. He died in two years, leav- 
ing his wife pregnant with a son, Ladis- 
laus Posthumus, who afterward reigned 
in the two kingdoms just mentioned ; and 
the choice of the electors fell upon Fred- 
erick, duke of Styria, second cousin of 
the last emperor, from whose posterity 
it never departed, except in a single in- 
stance, upon the extinction of his male 
line in 1740. 

Frederick III. reigned fifty-three years; 
a longer period than any of his Reign of 
predecessors; and his person- Frederick in. 
al character was more insignificant. [A. 
D. 1440-1493.] With better fortune than 
could be expected, considering both these 
circumstances, he escaped any overt at- 
tempt to depose him, though such a pro- 
ject was sometimes in agitation. He 
reigned during an interesting age, full of 
remarkable events, and big with others 
of more leading importance. The de- 
struction of the Greek empire, and ap- 
pearance of the victorious crescent upon 
the Danube, gave an unhappy distinction 
to the earlier years of his reign, and dis- 
played his mean and pusillanimous char- 
acter in circumstances which demanded 
a hero. At a later season he was drawn 
into contentions with France and Bur- 
gundy, which ultimately produced a new 
and more general combination of Europe- 
an politics. Frederick, always poor, and 
scarcely able to protect himself in Aus- 
tria from the seditions of his subjects, or 
the inroads of the King of Hungary, was 
yet another founder of his family, and 
left their fortunes incomparably more 
prosperous than at his accession. The 
marriage of his son Maximilian with the 
heiress of Burgundy began that aggran- 
dizement of the house of Austria which 
Frederick seems to have anticipated.* 
The electors, who had lost a good deal 
of their former spirit, and were grown 
sensible of the necessity of choosing a 
powerful sovereign, made no opposition 
to Maximilian's becoming king of the 
Romans in his father's lifetime. The 
Austrian provinces were reunited, either 
under Frederick, or in the first years of 
Maximilian ; so that, at the close of that 



* The famous device of Austria, A. E. I. O. U., 
was first used by Frederick III., who adopted it on 
his plate, books, and buildings. These initials 
stand for Austriae Est Imperare Orbi Universo ; or, 
in German, Alles Erdreicli 1st Osterreich Unter- 
than : a bold assumption for a man who was not safe 
in an inch of his dominions. — Struvius, p. 722. He 
confirmed the arch-ducal title of his family, which 
might seem implied in the original grant of Freder- 
ick I., and bestowed other high privileges above 
all princes of the empire. These are enumerated 
in Coxe's house of Austria, vol. i., p. 263. 



238 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V. 



period which we denominate the Middle 
Ages, the German empire, sustained by 
the patrimonial dominions of its chief, be- 
came again considerable in the scale of 
nations, and capable of preserving a bal- 
ance between the ambitious monarchies 
of France and Spain. 

The period between Rodolph and Fred- 
Progress of ^"<^^ 11^- Js distinguished by no 
free^mpe- circumstance so interesting as 
rial ciues. ^]-jg prosperous state of the free 
imperial cities, which had attained their 
maturity about the commencement of 
that interval. We find the cities of Ger- 
many, in the tenth century, divided into 
such as depended immediately upon the 
empire, which were usually governed by 
their bishop as imperial vicar, and such 
as were included in the territories of the 
dukes and counts.* Some of the former, 
lying principally upon the Rhine and in 
Franconia, acquired a certain degree of 
importance before the expiration of the 
eleventh century. Worms and Cologne 
manifested a zealous attachment to Hen- 
ry IV., whom they supported in despite 
of their bishops. f His son Henry V. 
granted privileges of enfranchisement 
to the inferior townsmen or artisans, 
who had hitherto been distinguished from 
the upper class of freemen, and particu- 
larly relieved them from oppressive usa- 
ges, which either gave the whole of their 
moveable goods to the lord upon their 
decease, or at least enabled him to seize 
the best chattel as his heriot.J He took 
away the temporal authority of the bish- 
op, at least in several instances, and re- 
stored the cities to a more immediate de- 
pendance upon the empii-e. The citizens 
were classed in companies, according 
to their several occupations ; an in- 
stitution which Vtras speedily adopted 
in other commercial countries. It does 
not appear that any German city had ob- 
tained, under this emperor, those privile- 
ges of choosing its own magistrates, 
which were conceded about the same 
time, in a few instances, to those of 
France. § Gradually, however, they be- 
gan to elect councils of citizens as a sort 
of senate and magistracy. This innova- 
tion might perhaps take place as early as 



* Pfefifel, p. 187. The Othos adopted the same 
policy in Germany which they had introduced in 
Italy, conferring the temporal government of cities 
upon the bishops ; probably as a counterbalance to 
the lay aristocracy.— Putter, p. 136. Struvius, 
p. 252. 

t Schmidt, t. iii., p. 239. 

t Schmidt, p. 242. Pfeffel, p. 293. Dumont, 
Corps Diplomatique, t. i., p. 64 

^ Schmidt, p. 243. 



the reign of Frederick I. ;* at least it was 
fully established in that of his grandson. 
They were at first only assistants to the 
imperial or episcopal bailiff, who proba- 
bly continued to administer criminal jus- 
tice. But, in the thirteenth century, the 
citizens, grown richer and stronger, ei- 
ther purchased the jurisdiction, or usurp- 
ed it through the lord's neglect, or drove 
out the bailiff by force. f The great rev- 
olution in Franconia and Swabia occa- 
sioned by the fall of the Hohenstauffen 
family, completed the victory of the cit- 
ies. Those which had depended upon 
mediate lords became immediately con- 
nected with the empire ; and with the 
empire in its state of feebleness, when an 
occasional present of money would easi- 
ly induce its chief to acquiesce in any 
claims of immunity which the citizens 
might prefer. 

It was a natural consequence of the 
importance which the free citizens had 
reached, and of their immediacy, that 
they were admitted to a place in the 
diets, or general meetings of the confed- 
eracy. They were tacitly acknowledged 
to be equally sovereign with the electors 
and princes. No proof exists of any law 
by which they were adopted into the 
diet. We find it said that Rodolph of 
Hapsburg, in 1291, renewed his oath 
with the princes, lords, and cities. Under 
the Emperor Henry VII. there is unequiv- 
ocal mention of the three orders compo- 
sing the diet ; electors, princes, and dep- 
uties from cities. J And, in 1344, they ap- 
pear as a third distinct college in the 
diet of Frankfort.^ 

The inhabitants of these free cities al- 
ways preserved their respect for the em- 
peror, and gave him much less vexation 
than his other subjects. He was indeed 
their natural friend. But their nobility 
and prelates were their natural enemies ; 
and the western parts of Germany were 
the scenes of irreconcilable warfare be- 
tween the possessors of fortified castles 
and the inhabitants of fortified cities. 
Each party Avas frequently the aggressor. 

* In the charter granted by Frederick I. to Spire 
in 1182, confirming and enlarging that of Henry 
v., though no express mention is made of any muni- 
cipal jurisdiction, yet it seems imphed in the fol- 
lowing words : Causam in civitate jam lite con- 
testatam non episcopus aut alia potestas extra civ- 
itatem determinari compellet. — Dumont, p. 108. 

t Schmidt, t. iv., p. 96. Pfeffel, p. 441. 

i Mansit ibi rex sex hebdomadibuscum principi- 
bus electoribus et aliis principibus et civitatum nun- 
tiis, de suo transitu et de praestandis servitiis in 
Italiam disponendo.— Auctor apud Schmidt, t. vi., 
p. 31. 

^ Pfeffel, p. 562. 



Chap. V.] 



GERMANY, 



239 



The nobles were too often mere robbers, 
who lived upon the plunder of travellers. 
But the citizens were almost equally in- 
attentive to the rights of others. It was 
their policy to offer the privileges of 
burghership to all strangers. The peas- 
antry of feudal lords, flying to a neigh- 
bouring town, found an asylum constant- 
ly open. A multitude of aliens, thus 
seeking as it were sanctuary, dwelt in 
the suburbs or liberties, between the city 
walls and the palisades which bounded 
the territory. Hence they were called 
Pfahlburgher, or burgesses of the pali- 
sades ; and this encroachment on the 
rights of the nobility was positively, 
but vainly prohibited by several imperial 
edicts, especially the Golden Bull. An- 
other class were the Ausburger, or out- 
burghers, who had been admitted to priv- 
ileges of citizenship, though resident at a 
distance, and pretended in consequence 
to be exempted from all dues to their 
original feudal superiors. If a lord re- 
sisted so unreasonable a claim, he incur- 
red the danger of bringing down upon 
himself the vengeance of the citizens. 
These outburghers are in general classed 
under the general name of Pfahlburgher 
by contemporary writers.* 

As the towns were conscious of the 
Leagues of hatred which the nobility bore 
the cities, towards them, it was their inter- 
est to make a common cause, and render 
mutual assistance. From this necessity 
of maintaining, by united exertions, their 
general liberty, the German cities never 
suffered the petty jealousies which might, 
no doubt, exist among them, to ripen into 
such deadly feuds as sullied the glory, 
and ultimately destroyed the freedom, of 
Lombardy. They withstood the bishops 
and barons by confederacies of their own, 
framed expressly to secure their com- 
merce against rapine or unjust exactions 
of toll. More than sixty cities, with three 
ecclesiastical electors at their head, form- 
ed the league of the Rhine in 1255, to re- 
pel the inferior nobility, who, having now 
become immediate, abused that inde- 
pendence by perpetual robberies. f The 
Hanseatic Union owes its origin to no 
other cause, and may be traced perhaps 
to rather a higher date. About the year 
1370, a league was formed, which, though 
it did not continue so long, seems to have 
produced more striking effects in Ger- 
many. The cities of Swabia and the 

* Schmidt, t. iv., p. 98 ; t. vi., p. 76. Pfeffel, p. 
402. Du Cange, Gloss, v. Pfalburger. Fauxbourg 
is derived from this word. 

t Struvius, p. 498. Schmidt, t. iv., p. 101. Pfef- 
fel, p. 416 



Rhine united themselves in a strict con- 
federacy against the princes, and espe- 
cially the families of Wirtemburg and Ba- 
varia. It is said that the Emperor Wen- 
ceslaus secretly abetted their projects. 
The recent successes of the Swiss, who 
had now almost established their repub- 
lic, inspired their neighbours in the empire 
with expectations which the event did not 
realize ; for they were defeated in this 
war, and ultimately compelled to relin- 
quish their league. Counter-associations 
were formed by the nobles, styled socie- 
ty of St. George, St. William, the Lion, 
or the Panther.* 

The spirit of political liberty was not 
confined to the free immediate provincial 
cities. In all the German prin- states of ihe 
cipahties, a form of limited ^"'P""^- 
monarchy prevailed, reflecting, on a re 
duced scale, the general constitution of 
the empire. As the emperors shared 
their legislative sovereignty with the diet, 
so all the princes who belonged to that 
assembly had their own provincial states 
composed of their feudal vassals, and of 
their mediate towns within their territory. 
No tax could be imposed without consent 
of the states ; and, in some countries, the 
prince was obliged to account for the 
proper disposition of the money granted. 
In all matters of importance affecting the 
principality, and especially in cases of 
partition, it was necessary to consult 
them ; and they sometimes decided be- 
tween competitors in a disputed succes- 
sion, though this indeed more strictly be- 
longed to the emperor. The provincial 
states concurred with the prince in ma- 
king laws, except such as were enacted 
by the general diet. The city of Wurtz- 
burgh, in the fourteenth century, tells its 
bishop, that if a lord would make any new 
ordinance, the custom is that he must 
consult the citizens, who have always 
opposed his innovating upon the ancient 
laws without their consent. f 

The ancient imperial domain, or pos- 
sessions which belonged to the Alienation of 
chief of the empire as such, the imperiaj 
had originally been very exten- '^""i*'"- 
sive. Besides large estates in every 
province, the territory upon each bank 
of the Rhine, afterward occupied by the 
counts palatine and ecclesiastical elec- 
tors, was, until the thirteenth century, an 
exclusive property of the emperor. This 
imperial domain was deemed so adequate 
to the support of his dignity, that it was 
usual, if not obligatory, for him to grant 

* Struvius, p. 649. Pfeftel, p. 586. Schmidt, t. 
v., D. 10 ; t. vi., p. 78. Putter, p. 293. 
t" Schmidt, t. vi., p. 8. Putter, p. 236. 



240 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V. 



away his patrimonial domains upon his 
election. But the necessities of Freder- 
ick II., and the long confusion that en- 
sued upon his death, caused the domain 
to be almost entirely dissipated. Ro- 
dolph made some eflbrts to retrieve it, 
but too late ; and the poor remains of 
what had belonged to Charlemagne and 
Otho were alienated by Charles IV.* 
This produced a necessary change in 
that part of the constitution which depri- 
ved an emperor of hereditary posses- 
sions. It was, however, some time be- 
fore it took place. Even Albert I. con- 
ferred the dutchy of Austria upon his 
sons when he was chosen emperor. f 
Louis of Bavaria was the first who re- 
tained his hereditary dominions, and 
made them his residence.^ Charles IV. 
and Wenceslaus lived almost wholly in 
Bohemia ; Sigismund chiefly in Hungary ; 
Frederick III. in Austria. This residence 
in their hereditary countries, while it 
seemed rather to lower the imperial dig- 
nity, and to lessen their connexion with 
the general confederacy, gave them in- 
trinsic power and influence. If the em- 
perors of the houses of Luxemburg and 
Austria were not like the Conrads and 
Fredericks, they were at least very su- 
perior in importance to the W^illiams and 
Adolphuses of the thirteenth century. 

[A. D. 1495.] The accession of Maxi- 
Accession of "^ili^"^ nearly coincides with 
Maximilian, the expedition of Charles VIII. 
Diet of against Naples ; and I should 
Worms. j^gj.g g^Qgg ^^Q German history 

of the middle age, were it not for the 
great epoch which is made by the diet of 
W^orms, in 1495. This assembly is cel- 
ebrated for the establishment of a perpet- 
ual public peace, and of a paramount 
court of justice, the Imperial Chamber. 

The same causes which produced 
Establish- continual hostilities among the 
mem of French nobility were not likely 
public to operate less powerfully on 
peace. ^j^^ Germans, equally warlike 
with their neighbours, and rather less 
civilized. But while the imperial gov- 
ernment was still vigorous, they were 
kept under some restraint. AVe find 
Henry III., the most powerful of the 
Franconian emperors, forbidding all pri- 
vate defiances, and establishing solemnly 

♦ Pfeffel, p. 580. 

+ Idem, p. 494. Struvius, p. 546. 

j Struvius, p. 611. In the capitulation of Rob- 
ert, it was e.\pressly provided that he should re- 
tain any escheated fief for the domain, instead of 
granting it away ; so completely was the public 
policy of the empire reversed. — Schmidt, t. v., 
p. 44. 



a general peace.* After his time, the 
natural tendency of manners overpower- 
ered all attempts to coerce it, and private 
war raged without limits in the empire, 
Frederick I. endeavoured to repress it 
by a regulation which admitted its legal- 
ity. This was the law of defiance (jus 
diflidationis), which required a solemn 
declaration of war, and three days' no- 
tice, before the commencement of hostile 
measures. A 11 persons contravening this 
provision were deemed robbers, and not 
legitimate enemies. f Frederick II. car- 
ried the restraint farther, and limited the 
right of self-redress to cases where jus- 
tice could not be obtained. Unfortunate- 
ly there was, in later times, no sufficient 
provision for rendering justice. The 
German empire indeed had now assumed 
so peculiar a character, and the mass of 
states who composed it were in so many 
respects sovereign within their own ter- 
ritories, that wars, unless in themselves 
unjust, could not be made a subject of 
reproach against them, nor considered, 
strictly speaking, as private. It was cer- 
tainly most desirable to put an end to 
them by common agreement, and by the 
only means that could render war unne- 
cessary, the establishment of a supreme 
jurisdiction. W^ar indeed, legally under- 
taken, was not the only, nor the severest 
grievance. A very large proportion of 
the rural nobility lived by robbery. | 
Their castles, as the ruins still bear wit- 
ness, were erected upon inaccessible hills, 
and in defiles that command the public 
road. An archbishop of Cologne having 
built a fortress of this kind, the governor 
inquired how he was to maintain him- 
self, no revenue having been assigned for 
that purpose. The prelate only desired 
him to remark that the castle was situa- 
ted near the junction of four roads. ^ As 
commerce increased, and the example of 
French and Italian civilization rendered 
the Germans more sensible to their own 
rudeness, the preservation of public peace 
was loudly demanded. Every diet under 
Frederick HI. professed to occupy itself 
with the two great objects of domestic 
reformation, peace and law. Temporary 



* Pfeflfel, p. 212. 

t Schmidt, t. iv., p. 108, et infra. Pfeflfel, p. 340. 
Putter, p. 205. 

t Germani atque Alemanni, quibus census patri- 
monii ad victum suppetit, et hos qui procul urbi- 
bus, aut qui castellis et oppiduhs dominantur, quo- 
Tum magna pars latrocinio deditur, nobiles censent 
—Pet. de Andlo. apud Schmidt, t. v., p. 490. 

ij Quern cum officiatus suus interrogans, de quo 
castrum deberit retinere, cum annuis careret redi- 
tibus, dicitur respondisse : Quatuor viae sunt trans 
castrum situataj. — Auctor apud Schmidt, p 492. 



Chap, v.] 



GERMANY. 



241 



cessations, during which all private hos 
tility was illegal, were sometimes enact- 
ed ; and, if observed, which may well be 
doubted, might contribute to accustom 
men to habits of greater tranquillity. 
The leagues of the cities were probably 
more efficacious checks upon the disturb- 
ers of order. In 1486 a ten years' peace 
was proclaimed, and before the expira- 
tion of this period the perpetual abolition 
of the right of defiance was happily ac- 
comphshed in the diet of Worms.* 

These wars, incessantly waged by the 
states of Germany, seldom ended in con- 
quest. Very few princely houses of the 
middle ages were aggrandized by such 
means. That small and independent no- 
bility, the counts and knights of the em- 
pire, whom the unprincipled rapacity of 
our own age has annihilated, stood 
through the storms of centuries with 
little diminution of their numbers. An 
incursion into the enemy's territory, a 
pitched battle, a siege, a treaty, are the 
general circumstances of the minor wars 
of the middle ages, as far as they appear 
in history. Before the invention of ar- 
tillery, a strongly fortified castle, or 
walled city, was hardly reduced except 
by famine, which a besieging army, wast- 
ing improvidently its means of subsist- 
ence, was full as likely to feel. That 
invention altered the condition of society, 
and introduced an inequality of forces, 
that rendered war more inevitably ruin- 
ous to the inferior party. Its first and 
most beneficial eff"ect was to bring the 
plundering class of the nobility into con- 
trol; their castles were more easily 
taken, and it became their interest to de- 
serve the protection of law. A few of 
these continued to follow their own pro- 
fession after the diet of Worms ; but they 
were soon overpowered by the more ef- 
ficient police established under Maximil- 
ian. 

The next object of the diet was to pro- 
imperiai vide an effectual remedy for pri- 
chamher. yate wrougs which might super- 
sede all pretence for taking up arms. 
The administration of justice had always 
been a high prerogative, as well as bound- 
en duty, of the emperors. It was exer- 
cised originally by themselves in person, 
or by the count palatine, the judge who 
always attended their court. In the prov- 
inces of Germany, the dukes were in- 
trusted with this duty: but, in order to 
control their influence, Otho the Great 
appointed provincial counts palatine, 
whose jurisdiction was in some respects 



* Schmidt, t. iv., p. 116; t. v., p. 338, 371 ; t. vi.. 
p. 34. Putter, p. 292, 348. 



exclusive of that still possessed by the 
dukes. As the latter became more inde- 
pendent of the empire, the provincia^l 
counts palatine lost the importance of 
their office, though their name may be 
traced to the twelfth and thirteenth cen- 
turies.* The ordinary administration of 
justice by the emperors went into disuse ; 
in cases where states of the empire 
were concerned, it appertained to the 
diet, or to a special court of princes. 
The first attempt to re-establish an im- 
perial tribunal was made by Frederick 11. 
in a diet held at Mentz in 1235. A judge 
of the court was appointed to sit daily, 
with certain assessors, half nobles, half 
lawyers, and with jurisdiction over all 
causes M'here princes of the empire 
were not concerned.! Rodolph of Haps- 
burg endeavoured to give efficacy to this 
judicature ; but, after his reign, it under- 
went the fate of all those parts of the 
Germanic constitution which maintained 
the prerogatives of the emperors. Si- 
gismund endeavoured to revive this tri- 
bunal ; but, as he did not render it perma- 
nent, nor fix the place of its sittings, it 
produced little other good than as it ex- 
cited an earnest anxiety for a regular sys- 
tem. This system, delayed throughout 
the reign of Frederick III., was reserved 
for the first diet of his son. J 

The Imperial Chamber, such was the 
name of the new tribunal, consisted, at 
its original institution, of a chief judge, 
who was to be chosen among the prince? 
or counts, and of sixteen assessors, pai|| 
ly of noble or equestrian rank, partly pro- 
fessors of law. They were named by 
the emperor with the approbation of the 
diet. The functions of the Imperial 
Chamber were chiefly the two following. 
They exercised an appellant jurisdiction 
over causes that had been decided by the 
tribunals established in states of the em- 
pire. But their jurisdiction in private 
causes was merely appellant. According 
to the original law of Germany, no man 
could be sued except in the nation or 
province to which he belonged. The 
early emperors travelled from one part 
of their dominions to another, in order to 
render justice consistently with this fun- 
damental privilege. When the Luxem- 
burg emperors fixed their residence in 
Bohemia, the jurisdiction of the imperial 
court in the first instance would have 
ceased of itself by the operation of this 
ancient rule. It was not, however, 
strictly complied with ; and it is said that 

* Pfeffel, p. 180. 

t Idem, p. 386. Schmidt, t. iv,, p. 56. 

i Pfeffel, t. ii., p. 66. 



242 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V, 



the emperors liad a concurrent jurisdic- 
tion with the provincial tribunals even in 
private causes. They divested them- 
selves, nevertheless, of this right, by 
granting privileges de iion cvocando; so 
that no subject of a state which enjoyed 
such a privilege could be summoned into 
the imperial court. All the electors pos- 
sessed this exemption by the terms of the 
Golden Bull; and it was specially granted 
to the burgraves of Nuremberg, and some 
other princes. This matter was finally 
settled at the diet of Worms ; and the 
Imperial Chamber was positively re- 
stricted from taking cognizance of any 
causes in the first instance, even where 
a state of the empire was one of the par- 
ties. It was enacted, to obviate the de- 
nial of justice that appeared likely to re- 
sult from the regulation in the latter case, 
that every elector and prince should es- 
tablish a tribunal in his own dominions, 
where suits against himself might be en- 
tertained.* 

The second part of the chamber's ju- 
risdiction related to disputes between 
two states of the empire. But these two 
could only come before it by way of ap- 
peal. During the period of anarchy which 
preceded the establishment of its juris- 
diction, a custom was introduced, in or- 
der to prevent the constant recurrence 
of hostilities, of referring the quarrels of 
states to certain arbitrators, called Aus- 
tregues, chosen among states of the same 
rank. This conventional reference be- 

«me so popular that the princes would 
t consent to abandon it on the institu- 
tion of the Imperial Chamber ; but, on the 
contrary, it was changed into an invaria- 
ble and universal law, that all disputes 
between different states must, in the first 
instance, be submitted to the arbitration 
of Austregues.f 

The sentence of the chamber would 
Establish- have been very idly pronounced, 
ment oc if means had not been devised to 
"""■^ *^' carry them into execution. In 
earlier times the want of coercive pro- 
cess had been more felt than that of ac- 
tual jurisdiction. For a few years after 
the establishment of the chamber, this de- 
ficiency was not supplied. But in 1501 
an institution, originally planned under 
Wenceslaus, and attempted by Albert II., 
was carried into efl'cct. The empire, 
with the exception of the electorates and 
the Austrian dominions, was divided into 
six circles ; each of which had its coun- 
cil of states, its director, whose province 

* Schmidt, t. v., p. 373. Putter, p. 372. 
t Putter, p. 361. Pfeflfel, p. 452. 



it was to convoke them, and its military 
force to compel obedience. In 1512 four 
more circles were added, comprehending 
those states which had been excluded in 
the first division. It was the business of 
the police of the circles to enforce the 
execution of sentences pronounced by 
the Imperial Chamber against refractory 
states of the empire.* 

As the judges of the Imperial Chamber 
were appointed with the consent auUc 
of the diet, and held their sittings (Council, 
in a free imperial city, its establishment 
seemed rather to encroach on the ancient 
prerogatives of the emperors. Maximil' 
ian expressly reserved these in consent- 
ing to the new tribunal. And, in order to 
revive them, he soon afterward instituted 
an Aulic Council at Vienna, composed of 
judges appointed by himself, and under 
the political control of the Austrian gov- 
ernment. Though some German patri- 
ots regarded this tribunal with jealousy, 
it continued until the dissolution of the 
empire. The Auhc Council had, in all 
cases, a concurrent jurisdiction with the 
Imperial Chamber; an exclusive one in 
feudal and some other causes. But it 
was equally confined to cases of appeal ; 
and these, by multiplied privileges de nou 
appellando, granted to the electoral and 
superior princely houses, were gradtially 
reduced into moderate compass. f 

The Germanic constitution may be 
reckoned complete, as to all its essential 
characteristics, in the reign of Maximil- 
ian. In later times, and especially by 
the treaty of Westphalia, it underwent 
several modifications. Whatever might 
be its defects, and many of them seem to 
have been susceptible of reformation 
without destroying the system of govern- 
ment, it had one invaluable excellence ; 
it protected the rights of the weaker 
against the stronger powers. The law of 
nations was first taught in Germany, and 
grew out of thepubhc law of the empire 
To narrow, as far as possible, the rights 
of war and of conquest, was a natural 
principle of those who belonged to petty 
states, and had nothing to tempt them in 
ambition. No revolution of our own 
eventful age, except the fall of the ancient 
French system of government, has been 
so extensive, or so likely to produce nn- 
portant consequences, as the spontane- 
ous dissolution of the German empire. 
Whether the new confederacy that has 
been substituted for that venerable con- 
stitution will be equally favourable to 



* Putter, p. 355. PfeT«l, t. ii., p. 100. 
+ Idem, p. 357. Pfeflisl, p. 102. 



Chap, v.] 



GERMANY. 



243 



peace, justice, and liberty, is among the 
most interesting and difficult problems 
that can occupy a philosophical observer.* 
At the accession of Conrad the First, 
Limits of Germany had by no means 
the empire, reached its present extent on 
the eastern frontier. Henry the Fowler 
and the Othos made great acquisitions 
upon that side. But tribes of Sclavonian 
origin, generally called Venedic, or, less 
properly. Vandal, occupied the northern 
coast from the Elbe to the Vistula. These 
were independent and formidable both 
to the kings of Denmark and princes of 
Germany, till, in the reign of Frederick 
Barbarossa, two of the latter, Henry the 
Lion, duke of Saxony, and Alberi the 
Bear, margrave of Brandenburg, subdued 
Mecklenburg and Pomerania, which af- 
terward became dutchies of the empire. 
Bohemia was undoubtedly subject, in a 
feudal sense, to Frederick I. and his suc- 
cessors, though its connexion with Ger- 
many was always slight. The emperors 
sometimes assumed a sovereignty over 
Denmark, Hungary, and Poland. But 
what they gained upon this quarter was 
compensated by the gradual separation of 
the Netherlands from their dominion, and 
by the still more complete loss of the king- 
dom of Aries. The house of Burgundy 
possessed most part of the former, and paid 
as little regard as possible to the imperial 
supremacy ; though the German diets in 
the reign of Maximilian still continued to 
treat the Netherlands as equally subject 
to their lawful control with the states on 
the right bank of the Rhine. But the 
provinces between the Rhone and the 
A.lps were absolutely separated ; Swis- 
serland has completely succeeded in es- 
tabhshing her own independence ; and 
the kings of France no longer sought 
even the ceremony of an imperial inves- 
titure for Dauphine and Provence. 

Bohemia, which received the Christian 
Botiemia— faith in the tenth century, was 
its consti- elevated to the rank of a kingdom 
'""°"- near the end of the twelfth. The 
dukes and kings of Bohemia were feudal- 
ly dependant upon the emperors, from 
whom they received investiture. They 
possessed, in return, a suffrage among the 
seven electors, and held one of the great 
offices in the imperial court. But, sep- 
arated by a rampart of mountains, by a 
difference of origin and language, and 
perhaps by national prejudices, from Ger- 
many, the Bohemians withdrew as far as 
possible from the general politics of the 

* The first edition of this work was published 
early in 1818. 

Q8 



confederacy. The kings obtained dis- 
pensations from attending the diets of the 
empire, nor were they able to reinstate 
themselves in the privilege thus abandon- 
ed till the beginning of the last centuiy.* 
The government of this kingdom, in a 
very shght degree partaking of the feudal 
character,! bore rather a resemblance to 
that of Poland ; but the nobility were di 
vided into two classes, the baronial and 
the equestrian, and the burghers formed a 
third state in the national diet. For the 
peasantry, they were in a condition of 
servitude, or predial villanage. The roy- 
al authority was restrained by a corona- 
tion oath, by a permanent senate, and by 
frequent assemblies of the diet, where a 
numerous and armed nobility appeared to 
secure their liberties by law or force. J 
The sceptre passed, in ordinary times, to 
the nearest heir of the royal blood ; but 
the right of election was only suspended, 
and no king of Bohemia ventured to boast 
of it as his inheritance.^ This mixture 
of elective and hereditary monarchy was 
common, as we have seen, to most Eu- 
ropean kingdoms in their original consti- 
tution, though few continued so long to ad- 
mit the participation of popular suffrages. 
The reigning dynasty having become 
extinct, in 1306, by the death of iiouse of 
Wenceslaus, son of that Otto- Luxemburg. 
car, who, after extending his conquests 
to the Baltic Sea, and almost to the Adri- 
atic, had lost his life in an unsuccessful 
contention with the Emperor Rodolph, 
the Bohemians chose John of Luxemburg, 
son of Henry VIL Under the kings of 
this family in the fourteenth century, and 
especially Charles IV., whose character 
appeared in a far more advantageous light 
in his native domains than in the empire, 
Bohemia imbibed some portion of refine- 
ment and science. II A university, erect- 
ed by Charles at Prague, became one of 

* Pfeffel, t. ii., p. 497. 

t Bona ipsorum tola Bohemia pleraque omnia 
hajreditaria sunt seu allodialia, perpauca feudalia. 
— Stransky, Resp. Bohemica, p. 392. Stransky 
was a Bohemian Protestant, who fled to Holland 
after the subversion of the civil and religious liber 
ties of his country by the fatal battle of Prague, ia 
1621. 

t Dubravius, the Bohemian historian, relatai 
(lib. .will. ) that the kingdom having no written laws, 
Wenceslaus, one of the kings, about the year 1300, 
sent for an Italian lawyer to compile a code. But 
the nobility refused to consent to this ; aware, prob- 
ably, of the consequences of letting in the prerog- 
ative doctrines of the civilians. They opposed, at 
the same time, the institution of a university at 
Prague, wliich, however, took place afterward un- 
der Charles IV. 

() Stransky, Resp. Bohem. Coxe's House of 
Austria, p. 487. 

II Schmidt. Coxe. 



244 



EUROPE DURING THE MIDDLE AGES. 



[Chap. T. 



the most celebrated in Europe. [A. D. 
„ 1416.] John Huss, rector of the 
John HUS8. y„-ygj.gjty^ ^ho had distinguish- 
ed himself by opposition to many abuses 
then prevailing in tiie church, repaired to 
the council of Constance, under a safe con- 
duct from the Emperor Sigismund. In vi- 
olation of this pledge, to the indelible in- 
famy of that prince and of the council, he 
was condemned to be burnt ; and his dis- 
ciple, Jerome of Prague, underwent after- 
Hussitewar. ""^'^^d the same fate. His coun- 
trymen, aroused by this atroci- 
ty, flew to arms. They found at their 
head one of those extraordinary men, 
Avhose genius, created by nature and 
called into action by fortuitous events, 
appears to borrow no reflected light from 

, ^ „. that of others. John Zisca had 

John Zisca. , , • i • i_ i 

not been tramed in any school 

which could have initiated him in the 
science of war; that, indeed, except in 
Italy, was still rude, and nowhere more 
so than in Bohemia. But, self-taught, he 
became one of the greatest captains who 
had appeared hitherto in Europe. It ren- 
ders his exploits more marvellous, that 
he was totally deprived of sight. Zisca 
has been called the inventor of the mod- 
ern art of fortification ; the famous moun- 
tain near Prague, fanatically called Tabor, 
became, by his skill, an impregnable in- 
trenchment. For his stratagems he has 
been compared to Hannibal. In battle, 
being destitute of cavalry, he disposed at 
intervals ramparts of carriages filled with 
soldiers, to defend his troops from the 
enemy's horse. His own station was by 
the chief standard ; where, after hearing 
the circumstances of the situation ex- 
plained, he gave his orders for the dispo- 
sition of the army. Zisca was never de- 
feated ; and his genius inspired the Hus- 
sites with such enthusiastic affection, that 
some of those who had served under him 
refused to obey any other general, and 
denominated themselves Orphans, in 
commemoration of his loss. He was in- 
deed a ferocious enemy, though some of 
his cruelties might, perhaps, be extenua- 
ted by the law of retaliation ; but to his 
soldiers affable and generous, dividing 
among them all the spoil.* 

[A. D. 1424.] Even during the lifetime 
Caiixtins ^^ Zisca, the Hussite sect was 
disunited; the citizens of Prague 
and many of the nobility contenting them- 
selves with moderate demands, while the 
Taboritcs, his peculiar followers, were 
actuated by a most fanatical phrensy. The 



* Lenfant, Hist, de la Guerie des Hussites. 
Schmidt. Coxe. I 



former took the name of Caiixtins, from 
their retention of the sacramental cup, of 
which the priests had latterly thought fit 
to debar laymen; an abuse indeed not 
sufficient to justify a civil war, but so to- 
tally without pretence or apology, that 
nothing less than the determined obstinacy 
of the Romish church could have main- 
tained it to this time. The Taborites, 
though no longer led by Zisca, gained 
some remarkable victories, but were at 
last wholly defeated ; while the Catholic 
and Calixtin parties came to an accom- 
modation, by which Sigismund was ac- 
knowledged as King of Bohemia, which 
he had claimed by the title of heir to hia 
brother Wenceslaus, and a few indul- 
gences, especially the use of the sacra- 
mental cup, conceded to the moderate 
Hussites. [A. D. 1433.] But this com- 
pact, though concluded by the council of 
Basle, being ill observed through the per- 
fidious bigotry of the See of Rome, the 
reformers armed again to defend their re 
ligious liberties, and ultimately elected a 
nobleman of their own party [A. D. 1458], 
by name George Podiebrad, to the throne 
of Bohemia, which he maintained during 
his life with great vigour and prudence.* 
Upon his death they chose Uladislaus 
[A. D. 1471], son of Casimir, king of Po- 
land, who afterward obtained also the 
kingdom of Hungary. [A. D. 1527.] Both 
these crowns were conferred on his son 
Louis, after whose death, in the unfortu- 
nate battle of Mohacz, Ferdinand of Aus- 
tria became sovereign of the two king- 
doms. 

The Hungarians, that terrible people 
who laid waste the Italian and 
German provinces of the empire ""s^'^y 
in the tenth century, became proselytes 
soon afterward to the religion of Europe, 
and their sovereign, St. Stephen, was ad- 
mitted by the pope into the list of Chris- 
tian kings. Though the Hungarians were 
of a race perfectly distinct from either 
the Gothic or the Sclavonian tribes, their 
system of government was in a great 
measure analogous. None indeed could 
be more natural to rude nations, who had 
but recently accustomed themselves to 
settled possessions, than a territorial aris- 
tocracy, jealous of unlimited or even he- 
reditary power in their chieftain, and sub- 
jugating the inferior people to that servi- 
tude, which, in such a state of society, is 
the unavoidable consequence of poverty. 

The marriage of an Hungarian princess 
with Charles II., king of Naples, event- 
ually connected her country far more 

* Lenfant. Schmidt. Coie. 



Chap. V.-] 



GERMANY. 



245 



than it had been with the affairs of Italy. 
I have mentioned in a different place the 
circumstances which led to the invasion 
of Naples by Louis, king of Hungary, and 
the wars of that powerful monarch with 
Sieismund Venice. [A. D. 1392.] By mar- 
rying the eldest daughter of 
Louis, Sigismund, afterward emperor, ac- 
quired the crown of Hungary, which, upon 
her death without issue, he retained in 
his own right, and was even able to trans- 
mit to the child of a second marriage, and 
to her husband, Albert, duke of Austria. 
From this commencement is deduced the 
connexion between Hungary and Austria. 
[A. D. 1437.] In two years, however, Al- 
bert, dying, left his widow pregnant ; but 
the states of Hungary, jealous of Austriauj 
influence, and of the intrigues of a mi- 
nority, without waiting for her delivery, 
VI di laus bestowed the crown upon Ula- 
dislaus, king of Poland. [A. D. 
1440.] The birth of Albert's posthumous 
son, Ladislaus, produced an opposition in 
behalf of the infant's right ; but the Aus- 
trian party turned out the weaker, and 
Uladislaus, after a civil war of some du- 
ration, became undisputed king. Mean- 
while a more formidable enemy drew 
near. The Turkish arms had subdued all 
Servia, and excited a just alarm through- 
out Christendom. Uladislaus led a con- 
siderable force, to which the presence of 
the Cardinal Julian gave the appearance 
of a crusade, into Bulgaria, and after sev- 
eral successes, concluded an honourable 
treaty with Amurath II. [A. D. 1444.] 
Battle of But this he was unhappily per- 
Warna. suaded to violate, at the instiga- 
tion of the cardinal, who abhorred the 
impiety of keeping faith with infidels.* 
Heaven judged of this otherwise, if the 
judgment of Heaven was pronounced 
upon the field of Warna. In that fatal 
battle Uladislaus was killed, and the Hun- 
garians utterly routed. The crown was 
now permitted to rest on the head of 
young Ladislaus ; but the regency was 
allotted by the states of Hungary to ana- 
Hunniades ^^^^ warrior, John Hunniades.f 
This hero stood in the breach 
for twelve years against the Turkish 



♦ iEneas Sylvius lays this perfidy on Pope Eu- 
genius IV. Scripsit Cardinal), nullum valere 
foedus, quod se inconsullo cutn hostibus religionis 
percussum esset, p. 397. The words in italics are 
slipped in to give a slight pretext for breaking the 
treaty. 

t Hunniades was a Wallachian, of a small fam- 
ily. The Poles charged him with cowardice at 
Warna.— (jEneas Sylvuis, p.398.) And the Greeks 
impute the same to him, or at least desertion of his 
troops, at Cossova, where he was defeated in 1448. 
— (Spondanus, ad ann. 1448.) Probably he was one 



power, frequently ^efeated, but uncon- 
quered in defeat. If the renown of Hun- 
niades may seem exaggerated by the par- 
tiality of writers who lived under the 
reign of his son, it is confirmed by more 
unequivocal evidence, by the dread and 
hatred of the Turks, whose children were 
taught obedience by threatening them 
with his name, and by the deference of a 
jealous aristocracy to a man of no dis- 
tinguished birth. He surrendered to 
young Ladislaus a trust that he had exer- 
cised with perfect fidelity ; but his merit 
was too great to be forgiven, and the 
court never treated him with cordiality. 
The last, and the most splendid service of 
Hunniades, was the relief of Belgrade. 
[A. D. 1456.] That strong city was Reliefer 
besieged by Mahomet II., three Belgrade, 
years after the fall of Constantinople; 
its capture would have laid open all Hun- 
gary. A tumultuary army, chiefly col- 
lected by the preaching of a friar, was 
intrusted to Hunniades ; he penetrated 
into the city, and having repulsed the 
Turks in a fortunate sally, wherein Ma- 
homet was wounded, had the honour of 
compeUing him to raise the siege in con- 
fusion. The relief of Belgrade was more 
important in its effect than in its imme- 
diate circumstances. It revived the spir- 
its of Europe, which had been appalled 
by the unceasing victories of the infidels. 
Mahomet himself seemed to acknowl- 
edge the importance of the blow, and sel- 
dom afterward attacked the Hungarians. 
Hunniades died soon after this achieve- 
ment, and was followed by the King La- 
dislaus.* The states of Hungary, al- 
though the Emperor Frederick HI. had 
secured to himself, as he thought, the re- 

of those prudently brave men, who, when victory 
is out of their power, reserve themselves to fight 
another day ; which is the characteristic of all par- 
tisans accustomed to desultory warfare. This is 
the apology made for him by ^neas Sylvius : for 
tasse rei militaris perito nulla in pugna salus visa, 
et salvare aliquos quam omnes perire maluit. Po- 
loni acceptam eo prslio cladem Huniadis vecordiai 
atque ignaviae tradiderunt ; ipse sua consiliaspreta 
conquestus est. I observe that all the writers 
upon Hungarian affairs have a party bias one way 
or other. The best and most authentic account o< 
Hunniades seems to be, still allowing for this par 
tiality, in the chronicle of John Thwrocz, who 
lived under Matthias. Bonfinius, an Italian com 
piler of the same age, has amplified this original au 
thority in his three decads of Hungarian history. 

* Ladislaus died at Prague, at the age of twen 
ty-two, with great suspicion of poison, which feh 
chiefly on George Podiebrad and the Bohemians. 
iEneas Sylvius was with him at the time, and in a 
letter written immediately after, plainly hints this, 
and his manner carries with it more persuasion than 
if he had spoken out. — Epist. 324. Mr. Coxe, 
however, informs us that the Bohemian historians 
have fully disproved the charge. 



246 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V 



version, were justly adverse to his char- 
acter, and to Austrian connexions. They 
Matthias conferred their crown on Mat- 
Corvinus. thias Corvinus, son of their great 
Hunniades. [A. D. 1458.] This prince 
reigned above thirty years with consid- 
erable reputation, to which his patronage 
of learned men, who repaid his muniti- 
cence with very profuse eulogies, did not 
a little contribute.* Hungary', at least in 
his time, was undoubtedly formidable to 
her neighbours, and held a respectable 
rank as an independent power in tlie re- 
public of Europe. 

The kingdom of Burgundy or Aries com- 
Swisseriand prehended the whole mount- 
— its early ainous region which we now 
history. ^.j^jj Swisscrlaud. It was ac- 
cordingly reunited to the Germanic em- 
pire by the bequest of Rodolph along 
with the rest of his dominions. [A. D. 
1032.] A numerous and ancient nobility, 
vassals one to another, or to the empire, 
divided the possession with ecclesiasti- 
cal lords, hardly less powerful than them- 
selves. Of the former we find the counts 
of Zahringen, Kyburg, Hapsburg, and 
Tokenburg most conspicuous ; of the lat- 
ter, the Bishop of Coire, the Abbot of St. 
Gall, and Abbess of Seckingen. Every 
variety of feudal rights was early found 
and long preserved in Helvetia; nor is 
there any country whose history better 
illustrates that ambiguous relation, half 
property and half dominion, in which the 
territorial aristocracy, under the feudal 
system, stood with respect to their de- 
pendants. In the twelfth century, the 
Swiss towns rise into some degree of 
\mportance. Zuric was eminent for com- 
mercial activity, and seems to have had 
DO lord but the emperor. Basle, though 
subject to its bishop, possessed the usu- 
al privileges of municipal government. 
Berne and Friburg, founded only in that 
century, made a rapid progress, and the 
fatter was raised, along with Zuric, by 
Frederick II., in 1218, to the rank of a 
free imperial city. Several changes in 
the principal Helvetian families took 
place in the thirteenth century, before 
the end of which the house of Hapsburg, 
under the politic and enterprising Ro- 



* Spondanus frequently blames the Italians, 
who received pensions from Matthias, or wrote at 
his court, for exaggerating his virtues or dissem- 
bling his misfortunes. And this was probably the 
case. However, Spondanus has rather contracted 
a prejudice against the Corvini. A treatise of Gal- 
eotus Martins, an Italian liiiiraieiir, Dedictis et fac- 
tis Malhiae, though it often notices an ordinary say- 
ing as jocosfe or facets dictum, gives a favourable 
impression of Matthias's ability, and also of his 
integrity. 



dolph, and his son Albert, became pos- 
sessed, through various titles, of a great 
ascendency in Swisserland.* 

Of these titles none was more tempt- 
ing to an ambitious chief than Ait^rtoi 
that of advocate to a convent. Austria. 
That specious name conveyed with it a 
kind of indefinite guardianship, and right 
of interference, which frequently ended 
in reversing the conditions of the eccle- 
siastical sovereign and its vassal. But, 
during times of feudal anarchy, there 
was perhaps no other means to secure 
the rich abbeys from absolute spoliation ; 
and the free cities in their early stage 
sometimes adopted the same policy. 
Among other advocacies, Albert ^^^ g^. 

Kbtained that of some convents 
'hich had estates in the valleys of 
Schwitz and Underwald. These seques- 
tered regions in the heart of the Alps 
had been for ages the habitation of a 
pastoral race, so happily forgotten, or 
so inaccessible in their fastnesses, as to 
have acquired a virtual independence, reg- 
ulating their own affairs in their general 
assembly with a perfect equality, though 
they acknowledged the sovereignty of 
the empire.! 'l^h^ people of Schwitz 
had made Rodolph their advocate. They 
distrusted Albert, whose succession to 
his father's inheritance spread alarm 
through Helvetia. It soon appeared that 
their suspicions were well founded. Be- 
sides the local rights which his ecclesi- 
astical advocates gave him over part of 
the forest cantons, he pretended, after 
his election to the empire, to send impe- 
rial bailiffs into their valleys, as adminis- 
trators of criminal justice. Their op- 
pression of a people unused to control, 
whom it was plainly the design of Albert 
to reduce into servitude, excited those 
generous emotions of resentment which 
a brave and simple race have seldom 
the discretion to repress. Three men, 
Stauffacher of Schwitz, Furst of Uri, 
Melchthal of Underwald, each Their in«ur- 
with ten chosen associates, met rection. 
by night in a sequestered field, and 
swore to assert the common cause of 
their liberties, without bloodshed or in- 
jury to the rights of others. Their 
success was answerable to the justice 
of their undertaking ; the three cantons 
unanimously took up arms, and expelled 
their oppressors without a contest. [A. 
D. 1308.] Albert's assassination by his 
nephew, which followed soon afterward, 
fortunately gave them leisure to consol- 

* Planta's History of the Helvetic Confederacy 
vol. i., chaps. 2-5. 
t Id., c. 4. 



Chap. V.] 



GERMANY. 



247 



idate their union* He was succeeded 
in the empire by Henry VH., jealous of 
the Austrian family, and not at all dis- 
pleased at proceedings which had been 
accompanied with so little violence or 
disrespect for the empire. But Leopold, 
duke of Austria, resolved to humble the 
peasants who had rebelled against his 
father, led a considerable force into their 
country. The Swiss, commending them- 
selves to Heaven, and determined rather 
to perish than undergo that yoke a sec- 
ond time, though ignorant of regular 
discipline and unprovided with defensive 
Battle of armour, utterly discomfited the 
Morgarten. assailauts at Morgarteu.f [A. D. 
1315.] 

This great victory, the Marathon of 
Swisserland, confirmed the independence' 
p ,. of the three original cantons. 

Formation . -^ °, 

of Swiss After some years. Lucerne, con- 
coiifede- tiguous in situation and alike in 
'^^'■^' interests, was incorporated into 
their confederacy. It was far more ma- 
terially enlarged about the middle of 
the fourteenth century, by the accession 
of Ziiric, Glaris, Zug, and Berne, all 
which took place within two years. The 
first and last of these cities had already 
been engaged in frequent wars with the 
Helvetian nobility, and their internal 
polity was altogether republican. | They 
acquired, not independence, which they 
already enjoyed, but additional security 
by this union with the Swiss, properly 
so called, who, in deference to their 
power and reputation, ceded to them the 
first rank in the league. The eight 
already enumerated are called the an- 
cient cantons, and continued till the late 
reformation of the Helvetic system to 
possess several distinctive privileges, 
and even rights of sovereignty over sub- 
ject territories, in which the five cantons 
of Friburg, Soleure, Basle, Schaffausen, 
and Appenzel, did not participate. From 
this time the united cantons, but espe- 
cially those of Berne and Zuric, began 
to extend their territories at the expense 
of the rural nobility. The same contest 
between these parties, with the same 
termination, which we know generally 
to have taken place in Lombardy during 
the eleventh and twelfth centuries, may 
be traced with more minuteness in the 
annals of Swisserland.^ Like the Lom- 
bards too, the Helvetic cities acted with 
policy and moderation towards the nobles 
whom they overcame, admitting them to 
the franchises of their community, as co- 



* Planta, c. 6. 
t Id., cc. 8, 9. 



t Id., c. 7. 
^ Id., c. 10. 



burghers (a privilege which virtually im- 
plied a defensive alliance against any 
assailant), and uniformly respecting the 
legal rights of property. Many feudal 
superiorities they obtained from the 
owners in a more peaceable manner, 
through purchase or mortgage. Thus 
the house of Austria, to which the exten- 
sive domains of the counts of Kyburg 
had devolved, abandoning, after repeated 
defeats, its hopes of subduing the forest 
cantons, alienated a great part of its 
possessions to Zuric and Berne.* And 
the last remnant of their ancient Helve- 
tic territories in Argovia was wrested in 
1417 from Frederick, count of Tyrol, who, 
imprudently supporting Pope John XXHL 
against the council of Constance, had 
been pui to the ban of the empire. These 
conquests Berne could not be induced to 
restore, and thus completed the inde- 
pendence of the confederate republics. f 
The other free cities, though not yet in- 
corporated, and the few remaining nobles, 
whether lay or spiritual, of whom the 
abbot of St. Gall was the principal, entered 
into separate leagues with different can- 
tons. Swisserland became therefore, in 
the first part of the fifteenth century, a 
free country, acknowledged as such by 
neighbouring states, and subject to no 
external control, though still compre- 
hended within the nominal sovereignty 
of the empire. 

The affairs of Swisserland occupy a 
very small space in the great chart of Eu- 
ropean history But in some respects they 
are more interesting than the revolutions 
of mighty kingdoms. Nowhere besides 
do we find so many titles to our sympa- 
thy, or the union of so much virtue with 
so complete success. In the Italian re- 
publics, a more splendid temple may 
seem to have been erected to liberty ; but, 
as we approach, the serpents of faction 
hiss around her altar, and the form of 
tyranny flits among the distant shadows 
behind the shrine. Swisserland, not ab- 
solutely blameless (for what republic has 
been so !), but comparatively exempt from 
turbulence, usurpation, and injustice, has 
well deserved to employ the native pen 
of an historian, accounted the most elo- 
quent of the last age.J Other nations 



♦ Planta, c. 11. + Vol. ii., c. 1. 

t I am unacquainted with Muller's history in the 
original language ; but, presuming the first volume 
of Mr. Planta's History of the Helvetic Confedera- 
cy to be a free translation or abridgment of it, I can 
well conceive that it deserves the encoiniuins of 
Madame de Stael, and other foreign critics. It is 
very rare to meet with such picturesque and lively 
delineation in a modern historian of distant times. 
But I must observe, that, if tite authentic chroni 



J48 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V. 



displayed an insuperable resolution in the 
defence of walled towns ; but the steadi- 
ness of the Swiss in the field of battle 
was without a parallel, unless we recall 
the memory of Laced;Bmon. It was even 
established as a law, that whoever re- 
turned from battle after a defeat should 
forfeit his life by the hands of the exe- 
cutioner. Sixteen hundred men, who had 
been sent to oppose the predatory inva- 
sion of the French in 1444, though they 
miglit have retreated without loss, deter- 
mined rather to perish on the spot, and 
fell amid a far greater heap of the hostile 
slain.* At the famous battle of Sem- 
pach, in 1885, the last which Austria pre- 
sumed to try against the forest cantons, 
the enemy's knights, dismounted from 
their horses, presented an impregnable 
barrier of lances, which disconcerted the 
Swiss ; till Winkelried, a gentleman of 
Underwald, commending his wife and 
children to his countrymen, threw him- 
self upon the opposite ranks, and collect- 
ing as many lances as he could grasp, 
forced a passage for his followers by bu- 
rying them in his bosom. f 

The burghers and peasants of Swisser- 
Exceiience land, ill provided with cavalry, 
of the Swiss and better able to dispense with 
"■°°P®- it than the natives of cham- 
paign countries, may be deemed the prin- 
cipal restorers of the Greek and Roman 
tactics, which place the strength of ar- 
mies in a steady mass of infantry. Be- 
sides their splendid victories over the 
dukes of Austria and their own neigh- 
bouring nobility, they had repulsed, in the 
year 1375, one of those predatory bodies 
of troops, the scourge of Europe in that 
age, and to whose licentiousness king- 
doms and free states yielded alike a pas- 
sive submission. They gave the dauphin, 
afterward Louis XL, who entered their 
country, in 1444, with a similar body of 
ruffians, called Armagnacs, the disbanded 
mercenaries of the English war, sufficient 
reason to desist from his invasion and to 
respect their valour. That able prince 
formed indeed so high a notion of the 
Swiss, that he sedulously cultivated their 
alliance during the rest of his life. He 

cles of Swisserland have enabled Muller to embel- 
lish his narration with so much circumstantial de- 
tail, he has been remarkably fortunate in his au- 
thorities. No man could write the annals of Eng- 
land or France in the fourteenth century with such 
particularity, if he was scrupulous not to fill up the 
meager sketch of chroniclers from the stories of 
his invention. The striking scenery of Swisser- 
land, and Muller's exact acquaintance with it, 
have given him another advantage as a. painter of 
history. 

Vol. ii., c. 2. t Vol, i., c. 10. 



was made aburulantly sensible of the wis- 
dom of this policy, when he saw his 
greatest enemy, the Duke of Burgundy, 
routed at Granson and Moral, and his af- 
fairs irrecoverably ruined by these hardy 
republicans. The ensuing age is the 
most conspicuous, though not the most 
essentially glorious, in tlie history of 
Swisserland. Courted for the excellence 
of their troops by the rival sovereigns of 
Europe, and themselves too sensible both 
to ambitious schemes of dominion and to 
the tliirst of money, the united cantons 
came to play a very prominent part in the 
wars of Lombardy, with great military 
renown, but not without some impeach- 
ment of that sterling probity which had 
distinguished their earlier efforts for in- 
dependence. These events, however, do 
not fall within my limits ; but the last 
year of the fifteenth century is a leading 
epoch with wliich I shall close this 
sketch. Though the house of „ ,, . 

A » • 1 J J . Ratification 

Austria had ceased to menace ofuieirin- 
the liberties of Helvetia, and dependence 
had even been for many years '" ^'^^^' 
its ally, the Emperor Maximilian, avvare 
of the important service he might derive 
from the cantons in his projects upon 
Italy, as well as of the disadvantage he 
sustained by their partiality to French in- 
terest, endeavoured to revive the un- 
extinguished supremacy of the empire. 
That supremacy had just been restored 
in Germany by the establishment of the 
Imperial Chamber, and of a regular pecu- 
niary contribution for its support as well 
as for other purposes, in the diet of 
Worms. The Helvetic cantons were 
summoned to yield obedience to these 
imperial laws; an innovation, for such 
the revival of obsolete prerogatives must 
be considered, exceedingly hostile to their 
republican independence, and involving 
consequences not less material in their 
eyes, the abandonment of a line of policy 
which tended to enrich, if not to ag- 
grandize them. Their refusal to comply 
brought on a war, wherein the Tyrolese 
subjects of Maximilian, and the Swabian 
league, a confederacy of cities in that 
province lately formed under the empe- 
ror's auspices, were principally engaged 
against the Swiss. But the success of 
the latter was decisive ; and, after a ter- 
rible devastation of the frontiers of Ger- 
many, peace was concluded upon terms 
very honourable for Swisserland. The 
cantons were declared free from the ju- 
risdiction of the Imperial Chamber, and 
from all contributions imposed by the 
diet. Their right to enter into foreign 
alliance, even hostile to the empire, if it 



C^AP. VI.] 



GREEKS AND SARACENS. 



349 



was not expressly recognised, continued I treaty of Westphalia, their real sover- 
unimpaired in practice ; nor am 1 aware eignly must be dated by an historian from 



that they were at any time afterward sup 
posed to incur the crime of rebellion by 
such proceedings. Though, perhaps, in 
the strictest letter of public law, the Swiss 
cantons were not absolutely released from 
their subjection to the empire until the 



the year when every prerogative which 
a government can exercise was finally 
abandoned.* 

* Planta, vol. ii., c. 4. 



CHAPTER VI. 



HISTORY OF THE GREEKS AND SARACENS. 



Rise of Mahometanism.— Causes of its Success. — 
Progress of Saracen Arms. — Greek Empire. — 
Decline of the Khalifs. — The Greeks recover 
part of their Losses. — The Turks. — The Cru- 
sades. — Capture of Constantinople by the Lat- 
ins. — Its Recovery by the Greeks. — The Mo- 
guls. — The Ottomans. — Danger at Constantino- 
ple. — Timur. — Capture of Constantinople by Ma- 
homet II. — Alarm of Europe. 

The difficulty which occurs to us in 
endeavouring to fix a natural commence- 
ment of modem history, even in the 
Western countries of Europe, is much 
enhanced when we direct our attention 
to the Eastern Empire. In tracing the 
long series of the Byzantine annals, we 
never lose sight of antiquity ; the Greek 
language, the Roman name, the titles, 
the laws, all the shadowy circumstance 
of ancient greatness, attend us throughout 
the progress from the first to the last of 
the Conslantines ; and it is only when 
we observe the external condition and 
relations of their empire, that we per- 
ceive ourselves to be embarked in a new 
sea, and are compelled to deduce, from 
points of bearing to the history of other 
nations, a line of separation, which the 
domestic revolutions of Constantinople 
would not satisfactorily afford. The ap- 
pearance of Mahomet, and the conquests 
of his disciples, present an epoch in the 
history of Asia still more important and 
more definite than the subversion of the 
Roman empire in Europe ; and hence the 
boundary line between the ancient and 
modern divisions of Byzantine history 
will intersect the reign of Heraclius. 
That prince may be said to have stood 
on the verge of both hemispheres of time, 
whose youth was crowned with the last 
victories over the successors of Arta- 
xerxes, and whose age was clouded by 
the first calamities of Mahometan inva- 
sion. 
Of all the revolutions which have had 



a permanent influence upon the Appear 
civil history of mankind, none anceofMa 
could so little be anticipated by '"""^'• 
human prudence as that effected by the 
religion of Arabia. As the seeds of in- 
visible disease grow up sometimes in si- 
lence to maturity, till they manifest them- 
selves hopeless and irresistible, the grad- 
ual propagation of a new faith in a bar- 
barous country beyond the limits of the 
empire was hardly known perhaps, and 
certainly disregarded, in the court of 
Constantinople. Arabia, in the age of 
Mahomet, was divided into many small 
states, most of which, however, seem to 
have looked up to Mecca as the capital 
of their nation and the chief seat of their 
religious worship. The capture of that 
city accordingly, and subjugation of its 
powerful and numerous aristocracy, read- 
ily drew after it the submission of the 
minor tribes, who transferred to the con- 
queror the reverence they were used to 
show to those he had subdued. If we 
consider Mahomet only as a military 
usurper, there is nothing more explicable, 
or more analogous, especially to the 
course of Oriental history, than his suc- 
cess. But as the author of a religious 
imposture, upon which, though avowedly 
unattested by miraculous powers, and 
though originally discountenanced by 
the civil magistrates, he had the boldness 
to found a scheme of universal dominion 
which his followers were half enabled to 
reahze, it is a curious speculation, by 
what means he could inspire so sincere, 
so ardent, so energetic, and so perma- 
nent a belief. 

A full explanation of the causes which 
contributed to the progress of Causes of 
Mahometanism is not perhaps *"* success, 
at present attainable by those most con- 
versant with this department of litera- 
ture. But we may point out several of 



250 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VI. 



leading importance :* in the first place, 
those just and elevated notions of the di- 
vine nature, and of moral duties, the gold 
ore that pervades the dross of the Koran, 
which were calculated to strike a serious 
and reflecting people, already perhaps 
disinclined, by intermixture with their 
Jewish and Christian fellow-citizens, to 
the superstitions of their ancient idola- 
try;! next, the artful incorporation of 
tenets, usages, and traditions from the 
various religions that existed in Arabia ;J 
and thirdly, the extensive application of 
the precepts in the Koran, a book con- 
fessedly written with more elegance and 
purity, to all legal transactions, and all 
the business of life. It may be expected 
that I should add to these, what is com- 

* We are very destitute of satisfactory materials 
for the history of Mahomet himself. Abulfeda, the 
most judicious of his biographers, lived in the four- 
teenth century, when it must have been morally 
impossible to discriminate the truth amid the tor- 
rent of fabulous tradition. Al Jannabi, whom Gag- 
nier translated, is a mere legend writer ; it would 
be as rational to quote the Acta Sanctorum as his 
romance. It is therefore difficult to ascertain the 
real character of the prophet, except as it is dedu- 
cible from the Koran ; and some skeptical Orien- 
talists, if I am not mistaken, have called in ques- 
tion the absolute genuineness even of that. Gib- 
bon has hardly apprized the reader sufficiently of 
the crumbling foundation upon which his narrative 
of Mahomet's life and actions depends. 

f The very curious romance of Antar, written 
perhaps before the appearance of Mahomet, seems 
to render it probable, that however idolatry, as we 
are told by Sale, might prevail in some parts of 
Arabia, yet the genuine religion of the descendants 
of Ishmael was a belief in the unity of God as 
strict as is laid down in the Koran itself, and ac- 
companied by the same antipathy, partly religious, 
partly national, towards the Fire-worshippers, 
which Mahomet inculcated. This corroborates 
•what I had said in the text before the publication 
of that work. 

t I am very much disposed to believe, notwith- 
standing what seems to be the general opinion, 
hat Mahomet had never read any part of the New 
Testament. His knowledge of Christianity ap- 
pears to be wholly derived from the apocryphal 
gospels, and similar works. He admitted the mi- 
raculous conception and prophetic character of 
Jesus, but not his divinity or pre-existence. Hence 
it is rather surprising to read, in a popular book of 
sermons by a living prelate, that all the heresies of 
the Christian church (I quote the substance from 
memory) are to be found in the Koran, but espe- 
cially that of Arianism. No one who knows what 
Arianism is, and what Mahometanism is, could 
possibly fall into so strange an error. The mis- 
fortune has been, that the learned writer, while 
accumulating a mass of reading upon this part of 
his subject, neglected what should have been the 
nucleus of the whole, a perusal of the single book 
which contains the doctrine of the Arabian impos- 
tor. In this strange chimera about the Arianism 
of Mahomet, he has been led away by a misplaced 
trust in Whitaker; a writer almost invariably in 
the wrong, and whose bad reasoning upon all the 
points of historical criticism which he attempted 
to discuss is quite notorious. 



monly considered as a distinguishing 
mark of Mahometanism, its indulgence to 
voluptuousness. But this appears to be 
greatly exaggerated. Although the char- 
acter of its founder may have been taint- 
ed by sensuality as well as ferociousness, 
I do not think that he relied upon induce- 
ments of the former kind for the diffusion 
of his system. We are not to judge of 
this by rules of Christian purity or of 
European practice. If polygamy was a 
prevailing usage in Arabia, as is not ques- 
tioned, its permission gave no additional 
license to the proselytes of Mahomet, 
who will be found rather to have nar- 
rowed the unbounded liberty of Oriental 
manners in this respect ; while his deci- 
ded condemnation of adultery, and of in- 
cestuous connexions, so frequent among 
barbarous nations, does not argue a very 
lax and accommodating morality. A de- 
vout Mussulman exhibits much more of 
the Stoical than the Epicurean character. 
Nor can any one read the Koran without 
being sensible that it breathes an austere 
and scrupulous spirit. And, in fact, the 
founder of a new religion or sect is little 
likely to obtain permanent success by in 
dulging the vices and luxuries of mankind. 
I should rather be disposed to reckon the 
severity of Mahomet's discipline among 
the causes of its influence. Precepts of 
ritual observance, being always definite 
and unequivocal, are less likely to be 
neglected, after their obligation has been 
acknowledged, than those of moral vir- 
tue. Thus the long fasting, the pilgrim- 
ages, the regular prayers and ablutions, 
the constant almsgiving, the abstinence 
from stimulating liquors, enjoined by the 
Koran, created a visible standard of prac- 
tice among its followers, and preserved a 
continual recollection of their law. 

But the prevalence of Islam in the life- 
time of its prophet, and during the first 
ages of its existence, was chiefly owing 
to the spirit of martial energy that he in- 
fused into it. The religion of Mahomet 
is as essentially a mihtary system as the 
institution of chivalry in the west of Eu- 
rope. The people of Arabia, a race of 
strong passions and sanguinary temper, 
inured to habits of pillage and murder, 
found in the law of their native prophet, 
not a license, but a command to desolate 
the world, and a promise of all that their 
glowing imaginations could anticipate of 
Paradise annexed to all in which they 
most delighted upon earth. It is difficult 
for us, in the calmness of our closets, to 
conceive that feverish intensity of excite- 
ment to which man may be wrought, 
when the animal and intellectual ener- 



Chap. VI.] 



GREEKS AND SARACENS. 



25] 



gies of his nature converge to a point, 
and the buoyancy of strength and cour- 
age reciprocates the influence of moral 
sentiment or reHgious hope. The effect 
of this union I liave formerly remarked 
in the crusades ; a phenomenon perfectly 
analogous to the early history of the 
Saracens. In each, one hardly knows 
whether most to admire the prodigious 
exertions of heroism, or to revolt from 
the ferocious bigotry that attended them. 
But the crusades were a temporary ef- 
fort, not thoroughly congenial to the 
spirit of Christendom, which, even in the 
darkest and most superstitious ages, was 
not susceptible of the solitary and over- 
ruling fanaticism of the Moslems. They 
needed no excitements from pontiffs and 
preachers to achieve the work to which 
they were called; the precept was in 
their law, the principle was in their 
hearts, the assurance of success was in 
their swords. O prophet, exclaimed 
Ali, when Mahomet, in the first years 
of his mission, sought among the scanty 
and hesitating assembly of his friends a 
vizier and lieutenant in command, I am 
the man ; whoever rises against thee, I 
will dash out his teeth, tear out his eyes, 
break his legs, rip up his belly. O proph- 
et, I will be thy vizier over them.* 
These words of Mahomet's early and il- 
lustrious disciple are, as it were, a text, 
upon which the commentary expands 
into the whole Saracenic history. They 
contain the vital essence of his religion, 
implicit faith, and ferocious energy. 
Death, slavery, tribute to unbelievers, 
were the glad tidings of the Arabian 
prophet. To the idolaters indeed, or 
those who acknowledged no special rev- 
elation, one alternative only was pro- 
posed, conversion or the sword. The 
People of the Book, as they are termed 
in tlie Koran, or four sects of Christians, 
Jews, Magians, and Sabians, were per- 
mitted to redeem their adherence to their 
ancient law, by the payment of tribute, 
and other marks of humiliation and ser- 
vitude. But the hmits which Mahomet- 
an intolerance had prescribed to itself 
were seldom transgressed, the word 
pledged to unbelievers was seldom for- 
feited ; and, with all their insolence and 
oppression, the Moslem conquerors were 
mild and liberal in comparison with those 
who obeyed the pontiffs of Rome or Con- 
stantinople. 

At the death of IMahomet in 632, his 
tK,ot»„^ temporal and religious sover- 
quests of the eignty embraced, and was hm- 
Saracens. jt^d \yy^ t^g Arabian peninsula. 

* Gibbon, vol. ix., p. 284 



The Roman and Persian empires, enga- 
ged in tedious and indecisive hostility 
upon the rivers of Mesopotamia and the 
Armenian mountains, were viewed by the 
ambitious fanatics of his creed as their 
quarry. In the very first year of Mahom- 
et's immediate successor, Abubeker, each 
of these mighty empires was invaded. 
The latter opposed but a short resistance. 
The crumbling fabric of eastern despot- 
ism is never secure against rapid and 
total subversion ; a few victories, a few 
sieges, carried the Arabian arms from 
the Tigris to the Oxus, and overthrew, 
with the Sassanian dynasty, the an- 
cient and famous religion they had 
professed. Seven years of active and 
unceasing warfare sufficed to subju- 
gate the rich province of Syria, though 
defended by numerous armies and for- 
tified cities [A. D. 632-639]; and the 
Khahf Omar had scarcely returned thanks 
for the accomplishment of this conquest, 
when Amrou his lieutenant announced 
to him the entire reduction of Egypt. 
After some interval, the Saracens won 
their way along the coast of Africa as 
far as the pillars of Hercules [A. D. 647 
-698], and a third province was irretriev- 
ably torn from the Greek empire. These 
western conquests introduced them to 
fresh enemies, and ushered in more splen- 
did successes ; encouraged by the disu- 
nion of the Visigoths, and invited by 
treachery, Musa, the general of a master 
who sat beyond the opposite extremity of 
the Mediterranean Sea [A. D. 710], pass- 
ed over into Spain, and within about two 
years the name of Mahomet was invoked 
under the Pyrenees.* 

These conquests, which astonish the 
careless and superficial, are less state of the 
perplexing to a calm inquirer than ^.^^^^ ^^' 
their cessation ; the loss of half 
the Roman empire, than the preserv^ation 
of the rest. A glance from IMedina to 
Constantinople, in the middle of the sev- 
enth century, would probably have indu- 
ced an indifferent spectator, if such a be- 
ing may be imagined, to anticipate by 
eight hundred years the establishment of 

* Ockley's History of the Saracens. Cardonne, 
Revolutions de I'Afrique et de I'Espagne. The 
former ot' these works is well known, and justly 
admired for its simplicity and picturesque details. 
Scarcely any narrative has ever excelled in beauty 
that of the death of Hossein. But these do not 
tend to render it more deserving of confidence. 
On the contrary, it may be laid down as a pretty 
general rule, that circumstantiality, which enhances 
the credibility of a witness, diminishes that of an 
historian remote in time or situation. And I ob- 
serve that Reiske, in his preface to Abulfeda, 
speaks of Wakidi, from whom Ockley's book, is 
but a translation, as a mere fabulist. 



252 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VI. 



a Mahometan dominion upon the shores 
of the Hellespont. The fame of Herac- 
lius had withered in the Syrian war; and 
his successors appeared as incapable to 
resist as they were unworthy to govern. 
Their despotism, unchecked by law, was 
often punished by successful rebellion ; 
but not a whisper of civil liberty was 
ever heard, and the vicissitudes of servi- 
tude and anarchy consummated the mor- 
al degeneracy of the nation. Less igno- 
rant than the western barbarians, the 
Greeks abused their ingenuity in theo- 
logical controversies, those especially 
which related to the nature and incarna- 
tion of our Saviour ; wherein the dispu- 
tants, as is usual, became more positive 
and rancorous as their creed receded 
from the possibility of human apprehen- 
sion. Nor were these confined to the 
clergy, who had not, in the East, obtain- 
ed the prerogative of guiding the national 
faith; the sovereigns sided alternately 
with opposing factions ; Heraclius was 
not too brave, nor Theodora too infamous, 
for discussions of theology ; and the dis- 
senters from an imperial decision were 
involved in the double proscription of 
treason and heresy. But the persecu- 
tors of their opponents at home pretend- 
ed to cowardly scrupulousness in the 
field ; nor was the Greek church ashamed 
to require the lustration of a canonical 

Eenance from the soldier who shed the 
lood of his enemies in a national war. 
But this depraved people were preserv- 
Deciineof ^^ from destruction by the vices 
tbe Sara- of their enemies, still more than 
cens. i-,y some intrinsic resources which 
they yet possessed. A rapid degenera- 
cy enfeebled the victorious Moslems in 
their career. That irresistible enthu- 
siasm, that earnest and disinterested zeal 
of the companions of Mahomet was in a 
great measure lost, even before the first 
generation had passed away. In the 
fruitful valleys of Damascus and Bassora, 
the Arabs of the desert forgot their ab- 
stemious habits. Rich from the tribute 
of an enslaved people, the Mahometan 
sovereigns knew no employment of rich- 
es but in sensual luxury, and paid the 
price of voluptuous indulgence in the re- 
laxation of their strength and energy. 
Under the reign of Moawiyali, the fifth 
khalif, an hereditary succession was sub- 
stituted for the free choice of the faith- 
ful, by which the first representatives 
of the prophet had been elevated to pow- 
er ; and this regulation, necessary as it 
plainly was to avert in some degree the 
dangers of schism and civil war, exposed 
the kingdom to the certainty of being 



often governed by feeble tyrants. But no 
regulation could be more than a tempo- 
rary preservative against civil war. The 
dissensions which slill separate and ren- 
der hostile the followers of Mahomet, 
may be traced to the first events that en- 
sued upon his death, to the rejection of 
his son-in-law Ali by the electors of Me- 
dina. Two reigns, those of Abubeker 
and Omar, passed in external glory and 
domestic reverence ; but the old age of 
Othnian was weak and imprudent, and 
the conspirators against him established 
the first among a hundred precedents of 
rebellion and regicide. Ali was now 
chosen ; but a strong faction disputed his 
right ; and the Saracen empire was for 
many years distracted with civil war, 
among competitors who appealed, in re- 
ality, to no other decision than that of 
the sword. The family of Ommiyah suc- 
ceeded at last in establishing an unresist- 
ed, if not an undoubted title. But rebell- 
ions were perpetually afterward breaking 
out in that vast extent of dominion, till 
one of these revolters acquired by suc- 
cess a better name than rebel, and found- 
ed the dynasty of the Abbassides. 

[A. D. 750.] Damascus had been the 
seat of empire under the Ommi- Khaufs of 
ades ; it was removed by the sue- Bagdad.' 
ceeding family to their new city of Bag- 
dad. There are not any names in the 
Jong line of khalifs, after the companions 
of Mahomet, more renowned in history 
than some of the earlier sovereigns who 
reigned in this capital, Almansor, Haroun 
Alraschid, and AlmamOn. Their splen- 
did palaces, their numerous guards, their 
treasures of gold and silver, the popu- 
lousness and wealth of tlieir cities, form- 
ed a striking contrast to the rudeness and 
poverty of the western nations in the 
same age. In their court, learning, which 
the first Moslem had despised as unwar- 
like, or rejected as profane, was held in 
honour.* The Khalif Almamdn, especial • 
ly, was distinguished for his patronage 
of letters ; the philosophical writings of 
Greece were eagerly sought and transla- 
ted ; the stars were numbered, the course 
of the planets was measured ; the Arabi- 
ans improved upon the science they bor- 
rowed, and returned it with abundant in- 
terest to Europe in the communication of 
numeral figures and the intellectual lan- 
guage of algebra. t Yet the merit of the 

* The Arabian writers date the origin of their 
literature (except those works of liction which had 
always been popular) from the reign of Almansor, 
A. D. 758.— Abulpharagius, p. 160. Gibbon, c. 52. 

t Several very recent publications contain in- 
teresting details on Saracen literature; Beruigton's 



Chap. VI.] 



GREEKS AND SARACENS. 



253 



Abbassides has been exaggerated by adu- 
lation or gratitude. After all the vague 
praises of hireling poets, which have some- 
times been repeated in Europe, it is very 
rare to read the history of an eastern 
sovereign unstained by atrocious crimes. 
No Christian government, except perhaps 
that of Constantinople, exhibits such a 
series of tyrants as the khalifs of Bagdad, 
if deeds of blood wrought through unbri- 
dled passion, or jealous policy, may chal- 
lenge the name of tyranny. These are 
ill redeemed by ceremonious devotion, 
and acts of trifling, perhaps ostentatious 
humility ; or even by the best attribute of 
Mahometan princes, a rigorous justice in 
chastising the offences of others. Anec- 
dotes of this description give as imperfect 
a sketch of an oriental sovereign as monk- 
ish chroniclers sometimes draw of one 
in Europe, who founded monasteries and 
obeyed the clergy ; though it must be 
owned that the former are in much bet- 
ter taste. 

Though the Abbassides have acquired 
more celebrity, they never attained the 
real strength of their predecessors. Un- 
der the last of the house of Ommiyah, one 
command was obeyed almost along the 
whole diameter of the known world, from 
the banks of the Sihon to the utmost pro- 
montory of Portugal. But the revolution 
which changed the succession of khalifs 
produced another not less important. A 
fugitive of the vanquished family, by name 
Abdalrahraan, arrived in Spain ; and the 
Moslems of that country, not sharing in 
the prejudices which had stirred up the 
Persians in favour of the line of Abbas, 
and conscious that their remote situa- 
tion entitled them to independence, pro- 
Separation claimed him Khalif of Cordova, 
of Spam There could be little hope of re- 
and Airica. (jQcing gQ distant a dependance ; 
and the example was not unlikely to be 
imitated. In the reign of Haroun Alras- 
chid, two principalities were formed in 
Africa ; of the Aglabites, who reigned 
over Tunis and Tripoli ; and of the Edri- 
sites, in the western parts of Barbary. 
These yielded in about a century to the 
Fatimites, a more powerful dynasty. 



Literary History of the Middle Ages, Mill's Histo- 
ry of Mahometanism, chap, vi., Turner's History 
of England, vol. i. Harris's Philological Arrange- 
ments is perhaps a book better known ; and though 
it has since been much excelled, was one of the 
first contributions, in our own language, to this de- 
partment, in which a great deal yet remains for the 
oriental scholars of Europe. Casiri's admirable 
catalogue of Arabic MSS. in the Escurial ought 
before this to have been followed up by a more ac- 
curate examination of their contents than it was 
possible for him to give. But sound literature and 
the Escurial !— what jarring ideas ! 



who afterward established an empire ia 
Egypt.* 

The loss, however, of Spain and Africa 
was the inevitable effect of that im- 
mensely extended dominion. Decline of 
which their separation alone the Khalifs. 
would not have enfeebled. But other 
revolutions awaited it at home. In the 
history of the Abbassides of Bagdad we 
read over again the decline of European 
monarchies, through their various symp- 
toms of ruin ; and find alternate analogies 
to the insults of the barbarians towards 
imperial Rome in the fifth century, to the 
personal insignificance of the Merovin- 
gian kings, and to the feudal usurpations 
that dismembered the inheritance of 
Charlemagne. 1. Beyond the northeast- 
ern frontier of the Saracen empire dwelt 
a warlike and powerful nation of the Tar- 
tar family, who defended the independ- 
ence of Turkestan from the Sea of Aral 
to the great central chain of mountains. 
In the wars which the khalifs or their 
lieutenants waged against them, many of 
these Turks were led into captivity, and 
dispersed over the empire. Their strength 
and courage distinguished them among a 
people grown effeminate by luxury ; and 
that jealousy of disaffection among his 
subjects, so natural to an eastern mon- 
arch, might be an additional motive with 
the Khalif Motassem to form bodies of 
guards out of these prisoners. But his 
policy was fatally erroneous. More rude, 
and even more ferocious than the Arabs, 
they contemned the feebleness of the 
khalifate, while they grasped at its rich- 
es. The son of Motassem, MotaAvakkel, 
was murdered in his palace by the barba- 
rians of the north ; and his fate revealed 
the secret of the empire, that the choice 
of its sovereign had passed to their slaves. 
Degradation and death were frequently 
the lot of succeeding khalifs ; but, in the 
East, the son leaps boldly on the throne 
which the blood of his father has stained, 
and the praetorian guards of Bagdad rarely 
failed to render a fallacious obedience to 
the nearest heir of the house of Abbas. 
2. In about one hundred years after the 
introduction of the Turkish soldiers, the 
sovereigns of Bagdad sunk almost into 
oblivion. Al Radi, who died in 940, was 
the last of these that officiated in the 
mosque, that commanded the forces in 
person, that addressed the people from 
the pulpit, that enjoyed the pomp and 
splendour of royalty .f But he was the 



* For these revolutions, which it is not very easy 
to fix in the memory, consult Cardonne, who has 
made as much of them as the subject would bear. 

t Abulfeda, p. 261. Gibbon, c. 52. Modem 



254 



EUROPE DURING THE MIDDLE AGES. 



[Chap, Vr. 



first who appointed, instead of a vizier, a 
new officer, a mayor, as it were, of the 
palace, with the title of Emir al Omra, 
commander of commanders, to whom he 
delegated by compulsion the functions of 
his office. This title was usually seized 
by active and martial spirits ; it was some- 
times hereditary, and in effect irrevoca- 
ble by the khalifs, whose names hardly 
appear after this time in oriental annals. 
3. During these revolutions of the pal- 
ace, every province successively shook 
off its allegiance; new principahties were 
formed in Syria and Mesopotamia, as 
well as in Khorasan and Persia, till the 
dominion of the Commander of the Faith- 
ful was literally confined to the city of 
Bagdad and its adjacent territory. For a 
time, some of these princes, who had 
been appointed as governors by the kha- 
lifs, professed to respect his supremacy, 
by naming him in the public prayers and 
upon the coin ; but these tokens of de- 
pendance were gradually obliterated.* 

Such is the outline of Saracenic his- 
Revivai of tory for three centuries after 
the Greek Mahomet ; one age of glorious 
'"P"'®' conquest ; a second of stationary, 
but rather precarious greatness ; a third 
of rapid decline. The Greek empire 
meanwhile survived, and almost recov- 
ered from the shock it had sustained. 
Besides the decline of its enemies, sev- 
eral circumstances may be enumerated, 
tending to its preservation. The mari- 
time province of Cilicia had been over- 
run by the Mahometans ; but between 
this and the lesser Asia, Mount Taurus 
raises its massy buckler, spreading, as a 
natural bulwark, from the seacoastof the 
ancient Pamphylia to the hilly district of 
Isauria, whence it extends in an easterly 
direction, separating the Cappadocian and 
Cilician plains, and, after throwing off 
considerable ridges to the north and 
south, connects itself with other chains 
of mountains that penetrate far into the 
Asiatic continent. Beyond this barrier 
the Saracens formed no durable settle- 
ment, though the armies of Alraschid 
wasted the country as far as tlie Helles- 
pont, and the city of Amorimn in Phry- 
gia was razed to the ground by Al Mo- 
tassem. The position of Constantinople, 
chosen with a sagacity to which the 
course of events almost gave the appear- 
ance of prescience, secured her from any 

Univ. Hist., vol. ii. Al Radi's command of the 
army is only mentioned by the last. 

* The decline of the Saracens is fully discussed 
in the 52d chapter of Gibbon, which is, in itself, a 
complete philosophical dissertation upon this part 
of history. 



immediate danger on the side of Asia, 
and rendered her as little accessible to 
an enemy as any city which valour and 
patriotism did not protect. Yet, in the 
days of Arabian energy, she was twice 
attacked by great naval armaments [A. D. 
668] ; the first siege, or rather blockade, 
continued for seven years [A. D. 716]; 
the second, though shorter, was more 
terrible, and her walls, as well as her 
port, were actually invested by the com- 
bined forces of the Khalif Waled, under 
his brother Moslema.* The final dis- 
comfiture of these assailants showed the 
resisting force of the empire, or rather 
of its capital ; but perhaps the abandon- 
ment of such maritime enterprises by the 
Saracens may be in some measure as- 
cribed to the removal of their metropolis 
from Damascus to Bagdad. But the 
Greeks in their turn determined to dis- 
pute the command of the sea. By pos- 
sessing the secret of an inextinguishable 
fire, they fought on superior terms : their 
wealth, perhaps their skill, enabled them 
to employ larger and better appointed 
vessels ; and they ultimately expelled 
their enemies from the islands of Crete 
and Cyprus. By land they were less de- 
sirous of encountering the Moslems. 
The science of tactics is studied by the 
pusillanimous, like that of medicine by 
the sick ; and the Byzantine emperors, 
Leo and Constantine, have left written 
treatises on the art of avoiding defeat, of 
protracting contest, of resisting attack. f 
But this timid policy, and even the pur- 
chase of armistices from the Saracens, 
were not ill calculated for the state of 
both nations ; while Constantinople tem- 
porized, Bagdad shook to her founda- 
tions ; and the heirs of the Roman name 
might boast the immortality of their own 
empire, when they contemplated the dis- 
solution of that which had so rapidly 
sprung up and perished. Amid all the 
crimes and revolutions of the Byzantine 
government, and its history is but a scries 
of crimes and revolutions, it was never 
dismembered by intestine war ; a sedition 
in the army, a tumult in the theatre, a 
conspiracy in the palace, precipitated a 
monarch from the throne ; but the alle- 
giance of Constantinople was instantly 
transferred to his successor, and the prov- 
inces implicitly obeyed the voice of the 
capital. The custom too of partition, so 

* Gibbon, c. 52. 

+ Idem, c. 53. Constantine Porphyrogenitus, ir. 
his advice to his son as to the administration of the 
empire, betrays a mind not ashamed to confess 
weakness and cowardice, and pleasing itself in 
petty arts to elude the rapacity, or divide the power 
of its enemies. 



Chap. VI.] 



GREEKS AND SARACENS. 



256 



baneful to the Latin kingdoms, and which 
was not altogether unknown to the Sara- 
cens, never prevailed in the Greek em- 
pire. It stood in the middle of the tenth 
century, as vicious indeed and cowardly, 
but more wealthy, more enlightened, and 
far more secure from its enemies, than 
under the first successors of Heraclius. 
For about one hundred years preceding 
there iiad been only partial wars with the 
Mahometan potentates ; and in these the 
emperors seem gradually to have gained 
the advantage, and to have become more 
frequently the aggressors. [A. D. 963- 
975.] But the increasing distractions of 
the East encouraged two brave usurpers, 
Nicephorus Phocas and John Zimisces, 
to attempt the actual recovery of tlie lost 
provinces. They carried the Roman 
arms (one may use the term with less re- 
luctance than usual) over Syria ; Antioch 
and Aleppo were taken by storm, Damas- 
cus submitted ; even the cities of Meso- 
potamia, beyond the ancient boundary of 
the I'hiphrates, were added to the trophies 
of Zimisces, who unwillingly spared the 
capital of the khalifate. From such dis- 
tant conquests it was expedient, and in- 
deed necessary, to withdraw ; but Cilicia 
and Antioch were permanently restored 
to the empire. At the close of the tenth 
century, the emperors of Constantinople 
possessed the best and greatest portion 
of the modern kingdom of Naples, a part 
of Sicily, the whole European dominions 
of the Ottomans, the province of Anato- 
lia or Asia Minor, with some part of Syria 
and Armenia.* 

These successes of the Greek empire 
_. _ , were certainly much rather due 

The Turks. , , i "^ i- -a. 

to the weakness of its enemies, 
than to any revival of national courage 
and vigour ; yet they would probably 
have been more durable, if the contest 
had been only with the khalifate, or the 
kingdoms derived from it. But a new 
actor was to appear on the stage of Asiat- 
ic tragedy. The same Turkish nation, 
the slaves and captives from which had 
become arbiters of the sceptre of Bagdad, 
passed their original limits of the laxartes 
or Sihon. The sultans of Gazna, a dy- 
nasty whose splendid conquests were of 
very short duration, had deemed it politic 
to divide the strength of these formidable 
allies, by inviting a part of them into Kho- 
rasan. They covered that fertile prov- 

♦ Gibbon, c. 52 and 53. The latter of these 
chapters contains as himinous a sketch of the con- 
dition of Greece, as the former does of Saracenic 
history. In each the facts are not grouped histor- 
ically, according to the order of time, but philosoph- 
ically, according to their relations. 



ince with their pastoral tents, and beck- 
oned their compatriots to share the rich- 
es of the south. [A. D. 1038.] The Gaz- 
nevides fell the earhest victims'; Their con- 
but Persia, violated in turn by quests, 
every conqueror, was a tempting and un- 
resisting prey. Togrol Bek, the founder 
of the Seljukian dynasty of Turks, over- 
threw the family of Bowides, who had 
long reigned at Ispahan, respected the 
pageant of IMahometan sovereignty in the 
Khalif of Bagdad, embraced with all his 
tribes the religion of the vanquished, and 
commenced the attack upon Christendom 
by an irruption into Armenia. [A. D. 
1071.] His nephew and successor. Alp 
Arslan, defeated and took prisoner the 
Emperor Romanus Diogenes ; and the 
conquest of Asia Minor was almost com- 
pleted by princes of the same family, the 
Seljukians of Rijm,* who were permitted 
by Malek Shah, the third sultan of the 
Turks, to form an independent kingdom. 
Through their own exertions, and the 
selfish impolicy of rival competitors for 
the throne of Constantinople, who barter- 
ed the strength of the empire for assist- 
ance, the Turks became masters of the 
Asiatic cities and fortified passes ; nor 
did there seem any obstacle to the inva- 
sion of Europe.f 

In this state of jeopardy, the Greek 
empire looked for aid to the na- The first 
tions of the west, and received it t-'rusadea 
in fuller measure than was expected, or 
perhaps desired. The deliverance of 
Constantinople was indeed a very sec- 
ondary object with the crusaders. But it 
was necessarily included in their scheme 
of operations, which, though they all 
tended to the recovery of Jerusalem, 
must commence with the first enemies 
that lay on their line of march. The 
Turks Avere entirely defeated, their capi- 
tal of Nice restored to the empire. As 
the Franks passed onwards, the Emperor 
Alexius Comnenus trod on their foot- 
steps, and secured to himself the fruits 
for which their enthusiasm disdained to 
wait. He regained possession of the 
strong places on the jEgean shores, of 
the defiles of Bithynia, and of the entire 
coast of Asia Minor, both on the Euxine 
and Mediterranean Seas, which the Turk- 
ish armies, composed of cavalry and un- 
used to regular warfare, could not recov- 
er.J So much must undoubtedly be as- 



* Riim, i. e., country of the Romans. 

t Gibbon, c. 57. De Guignes, Hist, des Huns, 
t. ii., 1. 2. 

t It does not seem perfectly clear whether the 
seacoast, north and south, was reannexed to the 
empire during the reign of Alexius, or of his gal 



256 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VI. 



cribed to the first crusade. But I think 
that the general effect of these expedi- 
tions has been overrated by those who 
consider them as having permanently re- 
Progress or tarded the progress of the Turk- 
the Greeks, jgjj power. The Christians in 
Palestine and Syria were hardly in con- 
tact with the Seljukian kingdom of Rum, 
the only enemies of the empire ; and it is 
not easy to perceive that their small and 
feeble principalities, engaged commonly 
in defending themselves against the Ma- 
hometan princes of Mesopotamia, or the 
Fatimite khalifs of Egypt, could obstruct 
the arms of a sovereign of Iconium upon 
the Maeander or the Halys. Other causes 
are adequate to explain the equipoise in 
which the balance of dominion in Ana- 
tolia was kept during the twelfth century ; 
the valour and activity of the two Com- 
neni, John and Manuel, especially the 
former; and the frequent partitions and 
internal feuds, through which the Selju- 
kians of Iconium, like all other oriental 
governments, became incapable of for- 
eign aggression. 

But whatever obligation might be due 
Capture of ^^ ^^^ ^""^^ crusaders from the 
Constant!- eastern empire was cancelled by 
tiopie by their descendants one hundred 

the Latins. -, j i ii j- ^u 

years afterward, when the fourth 
in number of those expeditions was turn- 
ed to the subjugation of Constantinople 
itself. One of those domestic revolu- 
tions which occur perpetually in Byzan- 
tine history, had placed a usurper on the 
imperial throne. The lawful monarch 
was condemned to blindness and a pris- 
on ; but the heir escaped to recount his 
misfortunes to the fleet and army of cru- 
saders, assembled in the Dalmatian port 
of Zara. [A. D. 1202.] This armament 
had been collected for the usual purposes, 
and through the usual motives, temporal 
and spiritual, of a crusade ; the military 
force chiefly consisted of French nobles ; 
the naval was supplied by the republic 
of Venice, whose doge commanded per- 
sonally in the expedition. It was not ap- 
parently consistent with the primary ob- 
ject of retrieving the Christian affairs in 
Palestine, to interfere in the government 
of a Christian empire ; but the tempta- 
tion of punishing a faithless people, and 
the hope of assistance in their subsequent 
operations, prevailed. They turned their 
prows up the Archipelago ; and notwith- 
standing the vast population and defen- 
sible strength of Constantinople, compell- 
ed the usurper to fly, and the citizens to 



lant son John Comnenus. But the doubt is hard- 
ly worth noticing. 



surrender. But animosities springing 
from religious schism and national jeal- 
ousy were not likely to be allayed by 
such remedies ; the Greeks, wounded in 
their pride and bigotry, regarded the legit- 
imate emperor as a creature of their ene- 
mies, ready to sacrifice their church, a 
stipulated condition of his restoration, to 
that of Rome. In a few months a new 
sedition and conspiracy raised another 
usurper, in defiance of the crusaders' army 
encamped without the walls. [A. D. 
1204.] The siege instantly recommen- 
ced ; and after three months the city of 
Constantinople was taken by storm. The 
tale of pillage and murder is always uni- 
form ; but the calamities of ancient capi- 
tals, kke those of the great, impress us 
more forcibly. Even now Ave sympa- 
thize with the virgin majesty of Constan- 
tinople, decked with the accumulated 
wealth of ages, and resplendent with the 
monuments of Roman empire and of Gre- 
cian art. Her populousness is estimated 
beyond credibility : ten, tAventy, thirty- 
fold that of London or Paris ; certainly 
far beyond the united capitals of all Eu- 
ropean kingdoms in that age.* In mag- 
nificence she excelled them more than 
in numbers ; instead of the thatched 
roofs, the mud walls, the narrow streets, 
the pitiful buildings of those cities, she 
had marble and gilded palaces, churches 
and monasteries, the works of skilful ar- 
chitects, through nine centuries, gradual 
ly sliding from the severity of ancient 
taste into the more various and brilliant 
combinations of eastern fancy.f In the 
libraries of Constantinople Avere collect- 
ed the remains of Grecian learning ; her 
forum and hippodrome were decorated 
Avith those of Grecian sculpture ; but nei- 
ther Avould be spared by undistinguishing 
rapine ; nor Avere the chiefs of the cru- 
saders more able to appreciate the loss 
than their soldiery. Four horses, that 

* Ville Hardouin reckons the inhabitants of Con 
stantinople at quatre cens mil hommes ou plus, by 
which Gibbon understands him to mean men of a 
military age. Le Beau allows a million for the 
whole population. — Gibbon, vol. xi., p. 213. We 
should probably rate London, in 1204, too high at 
40,000 souls. Paris had been enlarged by Philip 
Augustus, and stood on more ground than London. 
— Delamare sur la Police, t. i., p. 76. 

t O quanta civitas, exclaims Fulk of Chartres a 
hundred years before, nobilis et decora ! quot mo- 
nasteria quotque palatia sunt in ea, opere mero 
fabrefacta ! quot etiam in plateis vel in vicis opera 
ad spectandum mirabilia! Tajdium est quidem 
magnum recitare, quanta sit ibi opulentia bonorum 
omnium, auri et argenti, palliorum multifonnium, 
sacrarumque reliquiarum. Omni etiam tempore, 
navigio frequenti cuncta hominum necessaria illuc 
affemntur.— Du Chesne, Scrip. Rerum Gallica- 
rum, t. iv., p. 822. 



Chap. VI.] 



GREEKS AND SARACENS. 



267 



breathe in the brass of Lysippus, were 
removed from Constantinople to the 
square of St. Mark at Venice ; destined 
again to become the trophies of war, and 
to follow the alternate revolutions of con- 
quest. But we learn from a contemporary 
Greek to deplore the fate of many other 
pieces of sculpture, which Avere destroy- 
ed in wantonness, or even coined into 
brass money.* 

The lawfid emperor and his son had 
Partition of perished in the rebellion that 
ihe empire, g^ye occasion to this catas- 
trophe ; and there remained no right to 
interfere with that of conquest. But the 
Latins were a promiscuous multitude, 
and what their independent valour had 
earned was not to be transferred to a 
single master. Though the name of em- 
peror seemed necessary for the govern- 
ment of Constantinople, the unity of de- 
spotic power was very foreign to the 
principles and the interests of the crusa- 
ders. In their selfish schemes of ag- 
grandizement they tore in pieces the 
Greek empire. One fourth only was al- 
lotted to the emperor, three eighths were 
the share of the republic of Venice, and 
the remainder was divided among the 
chiefs. Baldwin, count of Flanders, ob- 
tained the imperial title, with the feudal 
sovereignty over the minor principalities. 
A monarchy thus dismembered had little 
prospect of honour or durability. The 
Latin emperors of Constantinople were 
more contemptible and unfortunate, not 
so much from personal character as po- 
litical weakness, than their predecessors ; 
their vassals rebelled against sovereigns 
not more powerful than themselves ; the 
Bulgarians, a nation who, after being 
long formidable, had been subdued by the 
imperial arms, and only recovered inde- 
pendence on the eve of the Latin con- 
quest, insulted their capital; the Greeks 
The Greeks viewed them with silent hatred, 
recover and hailed the dawning deliver- 
Constanti- ance from the Asiatic coast. 
""'' ^' On that side of the Bosphorus, 
the Latin usurpation was scarcely for a 
moment acknowledged ; Nice became 
the seat of a Greek dynasty, who reigned 
with honour as far as the Mseander ; and 
crossing into Europe, after having estab- 
lished their dominion throughout Roma- 
nia and other provinces [A. D. 1261], ex- 
pelled the last Latin emperors from Con- 
stantinople in less than sixty years from 
its capture. 

During the reign of these Greeks at 
Nice, they had fortunately little to dread 



* Gibbon, c. 60. 



on the side of their former enemies, and 
were generally on terms of friendship 
with the Seljiikians of Iconium. That 
monarchy indeed had sufficient objects 
of apprehension for itself. Their own 
example in changing the up- invasions of 
land plains of Tartary for the Asia by ttie 
cultivated valleys of the south Kansmians 
was imitated in the thirteenth century by 
two successive hordes of northern bar- 
barians. The Karismians, whose tents 
had been pitched on the lower Oxus and 
Caspian Sea, availed themselves of the 
decline of the Turkish power to establish 
their dominion in Persia, and menaced/ 
though they did not overthrow, the king- 
dom of Iconium. A more tremendous 
storm ensued in the irruption ^n^j^jo-ui, 
of Moguls under the sons of 
Zingis Khan. From the farthest regions 
of Chinese Tartary issued a race more 
fierce and destitute of civilization than 
those who had preceded, whose numbers 
were told by hundreds of thousands, and 
whose only test of victory was devasta- 
tion. [A. D. 1218-1272.] All Asia, from 
the Sea of China to the Euxine, wasted 
beneath the locusts of the north. They 
annihilated the phantom of authority 
which still lingered with the name of 
khalif at Bagdad. They reduced into de- 
pendance, and finally subverted, the Sel-. 
jukian dynasty of Persia, Syria, and Ico- 
nium. The Turks of the latter kingdom 
betook themselves to the mountainous 
country, where they formed several petty 
principalities, which subsisted by incur- 
sions into the territory of the Moguls or 
Greeks. The chief of one of these, na- 
med Othman, at the end of the thirteenth 
century [A. D. 1299], penetrated into the 
province of Bithynia, from which his 
posterity were never to withdraw.* 

The empire of Constantinople had nev- 
er recovered the blow it receiv- pgp|i„jn„ 
ed at the hands of the Latins, state of the 
Most of the islands in the Archi- Greek em- 
pelago, and the provinces of ^"^' 
proper Greece from Thessaly southward, 
were still possessed by those invaders. 
The wealth and naval power of the em- 
pire had passed into the hands of the 
maritime republics ; Venice, Genoa, Pi- 
sa, and Barcelona were enriched by a 
commerce which they carried on as in- 
dependent states within the precincts of 
Constantinople, scarcely deigning to so- 
licit the permission or recognise the su- 
premacy of its master. [A. D. 1352.] In 
a great battle fought under the walls of 



* De Guignes, Hist, des Huns, t. lil., 1. 15. Gib- 
bon, c. 64. 



R 



258 



EUROPE DURING THE MIDDLE AGES. 



I Chap. VI, 



the city between the Venetian and Gen- 
oese fleets, the weight of the Roman em- 
pire, in Gibbon's expression, was scarce- 
ly felt in the balance of these opulent 
and powerful republics. Eight galleys 
were the contribution of the Emperor 
('antacuzene to his Venetian allies ; and 
upon their defeat he submitted to the ig- 
nominy of excluding them for ever from 
trading in his dominions. Meantime the 
remains of the empire in Asia were seiz- 
ed by the independent Turkish dynasties. 
The Otto- of which the most illustrious, that 
mans. of the Ottomans, occupied the 
Jjrovince of Bithynia. [A. D. 1341.] In- 
vited by a Byzantine faction into Europe, 
about the middle of the fourteenth cen- 
tury, they fixed themselves in the neigh- 
bourhood of the capital, and in the thirty 
years' reign of Amurath I., subdued, with 
little resistance, the province of Roma- 
nia, and the small Christian kingdoms 
that had been formed on the lower Dan- 
ube. Bajazet, the successor of Amurath, 
reduced the independent emirs of Anato- 
lia to subjection, and, after long threaten- 
ing Constantinople, invested it by sea 
and land. [A. D. 1396.] The Greeks 
called loudly upon their brethren of the 
west for aid against the common enemy 
of Christendom ; but the flower of French 
chivalry had been slain or taken in the 
battle of Nicopolis in Bulgaria,* where 
the King of Hungary, notwithstanding 
the heroism of these volunteers, was en- 
tirely defeated by Bajazet. The Empe- 
ror Manuel left his capital with a faint 
hope of exciting the courts of Europe 
to some decided efforts, by personal rep- 
resentations of the danger; and, during 
his absence, Constantinople was saved, 
not by a friend, indeed, but by a power 
more formidable to her enemies than to 
herself. 

The loose masses of mankind, that 
The Tartars without laws, agriculture, or 
or Moguls of fixed dwellings, overspread the 
Timur. ^^gj. central regions of Asia, 
have at various times been impelled, by 
necessity of subsistence, or through the 

* The Hungarians fled in this battle, and desert- 
ed their aUies, according to the Memoires de Bou- 
cicaut, c. 25. But Froissart, who seems a fairer 
authority, imputes the defeat to the rashness of the 
French. — Part iv., ch. 79. The Count de Nevers 
(Jean Sans Peur, afterward Duke of Burgundy), 
who commanded the French, was made prisoner 
with others of the royal blood, and ransomed at a 
very high price. Many of eminent birth and merit 
were put to death; a fate from which Boucicant 
was saved by the interference of the Count de 
Nevers, who might better himself have perished 
with honour on that occasion, than survived to 
plunge his country into civil war, and his name 
into infamy. 



casual appearance of a commanding ge- 
nius, upon the domain of culture and civ- 
ilization. Two principal roads connect 
the nations of Tartary with those of the 
west and south ; the one into Europe, 
along the Sea of Azoph, and northern 
coast of the Euxine ; the other across 
the interval between the Bukharian moun- 
tains and the Caspian into Persia. Four 
times at least within the period of authen- 
tic history, the Scythian tribes have ta- 
ken the former course, and poured them- 
selves into Europe, but each wave was 
less effectual than the preceding. The 
first of these was in the fourth and fifth 
centuries, for we may range those rapid- 
ly successive migrations of the Goths 
and Huns together, when the Roman 
empire fell to the ground, and the only 
boundary of barbarian conquest was the 
Atlantic Ocean upon the shores of Portu- 
gal. The second wave came on with 
the Hungarians in the tenth century, 
whose ravages extended as far as the 
southern provinces of France. A third 
attack was sustained from the Moguls 
under the children of Zingis, at the same 
period as that which overwhelmed Persia. 
The Russian monarchy was destroyed in 
this invasion, and for two hundred years 
that great country lay prostrate under the 
yoke of the Tartars. As they advanced, 
Poland and Hungary gave little opposi- 
tion ; and the farthest nations of Europe 
were appalled by the tempest. But Ger- 
many was no longer as she had been in 
the anarchy of the tenth century ; the 
Moguls were unused to resistance, and 
still less inclined to regular warfare ; they 
retired before the Emperor Frederick II. 
[A. D. 1245], and the utmost points of 
their western invasion were the cities of 
Lignitz, in Silesia, and Neustadt, in Aus- 
tria. In the fourth and last aggression 
of the Tartars, their progress in Europe 
is hardly perceptible ; the Moguls of Ti- 
mur's army could only boast the destruc- 
tion of Azoph, and the pillage of some 
Russian provinces. Timur, the sover- 
eign of these Moguls, and founder of 
their second dynasty, which has been 
more permanent and celebrated than that 
of Zingis, had been the prince of a small 
tribe in Transoxiana, between the Gihon 
and Sirr, the doubtful frontier of settled 
and pastoral nations. His own energy 
and the weakness of his neighbours are 
sufficient to explain the revolution he 
effected. Like former conquerors, To- 
grol Bek and Zingis, he chose the road 
through Persia; and, meeting little re- 
sistance from the disordered governments 
of Asia, extended his empire on one side 



Chap. VI] 



GREEKS AND SARACENS. 



269 



to t!ie Syrian coast, while by successes 
still more renowned, though not belong- 
ing to this place, it reached on the other 
to the heart of Hindostan. In his old 
age, the restlessness of ambition impelled 
him against the Turks of Anatolia. Ba- 
jazet hastened from the siege of Constan- 
tinople to a more perilous contest : his 
Defeat of defeat and captivity, in the plains 
Bajazet. of Angora [A. D. 140;^], clouded 
for a time the Ottoman crescent, and 
preserved the wreck of the Greek empire 
for fifty years longer. 

The Moguls did not improve their 
Danger of victory ; in the western parts of 
Gonsian- Asia, as in Hindostan, Timur was 
tinopie. i^yf a barbarian destroyer, though 
at Samarcand a sovereign and a legisla- 
tor. He gave up Anatolia to the sons of 
Bajazet; but the unity of their power 
was broken; and the Ottoman kingdom, 
like those which had preceded, experien- 
ced the evils of partition and mutual ani- 
mosity. For about twenty years an op- 
portunity was given to the Greeks of re- 
covering part of their losses ; but they 
were incapable of making the best use of 
this advantage, and though they regained 
possession of part of Romania, did not ex- 
tirpate a strong Turkish colony that held 
the city of Gallipoli in the Chersonesus. 
[A. D. 1421.] When Amurath H., there- 
fore, reunited under his vigorous scep- 
tre the Ottoman monarchy, Constantino- 
ple was exposed to another siege and 
to fresh losses. Her walls, however, 
repelled the enemy ; and, during the 
reign of Amurath, she had leisure to re- 
peat those signals of distress which the 
princes of Christendom refused to ob- 
serve. The situation of Europe was in- 
deed sufficiently inauspicious : France, 
the original country of the crusades and of 
chivalry, was involved in foreign and do- 
mestic war; while a schism, apparently 
interminable, rent the bosom of the Latin 
church, and impaired the efficiency of the 
only power that could unite and animate 
its disciples in a religious war. Even 
when the Roman pontiffs were best dis- 
posed to rescue Constantinople from de- 
struction, it was rather as masters than 
as allies that they would interfere ; their 
ungenerous bigotry, or rather pride, dic- 
tated the submission of her church, and 
the renunciation of her favourite article 
of distinctive faith. The Greeks yielded 
with reluctance and insincerity in the 
council of Florence ; but soon rescinded 
their treaty of union. Eugenius IV. pro- 
cured a short diversion on the side of 
Hungary ; but after the unfortunate bat- 
Je of Warna, the Hungarians were abun- 
R 2 



dantly employed in self-defence. [A. D 
1444.] 

The two monarchies which have sue 
cessively held their seat in the city of 
Constantino, may be contrasted in the 
circumstances of their decline. In the 
present day we anticipate, with an assu- 
rance that none can deem extravagant, 
the approaching subversion of the Otto- 
man power; but the signs of internal 
weakness have not yet been confirmed 
by the dismemberment of provinces ; and 
the arch of dominion, that long since has 
seemed nodding to its fall, and totters at 
every blast of the north, still rests upon 
the landmarks of ancient conquest, and 
spans the ample regions from Bagdad to 
Belgrade. Far different were the events 
that preceded the dissolution of the Greek 
empire. Every province was in turn sub- 
dued ; every city opened her gates j^^ ^ .. 
to the conqueror ; the limbs were 
lopped off one by one ; but the pulse still 
beat at the heart, and the majesty of the 
Roman name was ultimately confined to 
the walls of Constantinople. Before Ma- 
homet II. planted his cannon against 
them, he had completed every smaller 
conquest, and deprived the expiring em- 
pire of every hope of succour or delay. 
It was necessary that Constantinople 
should fall ; but the magnanimous resigna- 
tion of her emperor bestows an honour 
upon her fall which her prosperity sel- 
dom earned. The long deferred but in- 
evitable moment arrived [A. D. 1453], 
and the last of the Cesars (I will not say 
of the Palaeologi) folded round him the 
imperial mantle, and remembered the 
name which he represented in the dignity 
of heroic death. It is thus that the intel- 
lectual principle, when enfeebled by dis- 
ease or age, is said to rally its energies 
in the presence of death, and to pour the 
radiance of unclouded reason around the 
last struggles of dissolution. 

Though the fate of Constantinople had 
been protracted beyond all rea- Alarm ex- 
sonable expectation, the actual cited by it 
inteUigence operated like that '"Europe, 
of sudden calamity. A sentiment of 
consternation, perhaps of self-reproach, 
thrilled to the heart of Christendom. 
There seemed no longer any thing to 
divert the Ottoman armies from Hunga- 
ry ; and, if Hungary should be subdued, it 
was evident that both Italy and the Ger- 
man empire were exposed to invasion.* 



* Sive vincitur Hungaria, sive coacta jungitur 
'Turcis, neque Italia neqiie Germania tuta erit, 
neque satis Rhenus Gallos secures reddet. — JEn. 
Sylv., p. 678. This is part of a discourse pronoun- 
ced by ^Eneas Sybius before the diet of Frankfort 



260 



EUROPE DURING THE MIDDLE AGES. 



[Chak. VI, 



A general union of Christian powers was 
required to withstand this common ene- 
my. But the popes, who had so often 
armed them against each other, wasted 
their spiritual and pohtical counsels in 
attempting to restore unanimity. War 
was proclaimed against the Turks at the 
diet of Frankfort, in 1454; but no efforts 
were made to carry the menace into ex- 
ecution. No prince could have sat on 
the imperial throne more unfitted for the 
emergency than Frederick III. ; his mean 
spirit and narrow capacity exposed him 
to the contempt of mankind ; his avarice 
and duplicity ensured the hatred of Aus- 
tria and Hungary. During the papacy of 
Pius II., whose heart was thoroughly en- 
gaged in this legitimate crusade, a more 
specious attempt was made by convening 
a European congress at Mantua. Almost 
all the sovereigns attended by their en- 
voys ; it was concluded that 50,000 men- 
at-arms should be raised, and a tax levied 
for three years of one tenth from the 
revenues of the clergy, one thirtieth from 
those of the laity, and one twentieth from 
the capital of the Jews.* Pius engaged 
to head this armament in person; but 
when he appeared next year at Ancona, 
the appointed place of embarcati in, the 
princes had failed in all their promises of 
men and money ; and he found only ahead- 
long crowd of adventurers, destitute of 
every necessary, and expecting to be fed 
and paid at the pope's expense. It was 
not by such a body that Mahomet could 
be expelled from Constantinople. If the 
Christian sovereigns had given a steady 
and sincere co-operation, the contest 
would still have been arduous and uiicer- 
Institution of tain. In the early crusades, 
Janizaries, tj^g superiority of arms, of skill, 
and even of discipline, had been uniform- 
ly on the side of Europe. But the pres- 
ent circumstances were far from similar. 
An institution, begun by the first and per- 
fected by the second Amurath, had given 
to the Turkish armies, what their enemies 
still wanted, military subordination and 
veteran experience. Aware, as it seems. 



which, though too declamatory, hke most of his 
writings, is an interesting illustration of the state of 
Europe, and of the impression produced by that 
calamity. Spondanus, ad an. 1454, has given large 
extracts from this oration. 

* Spondanus. Neither Charles VII., nor even 
Philip of Burgundy, who had made the loudest 
professions, and pledged himself in a fantastic pa- 
geant at his court, soon after the capture of Con- 
stantinople, to undertake this crusade, was sincere 
in his promises. The former pretended apprehen- 
sions of invasion from England, as an excuse for 
sending no troops ; which, considering the situation 
of England in 1459, was a bold attempt upon the 
oredulity of mankind. 



of the real superiority of Europeans in 
war, these sultans selected the stoutest 
youths from their Bulgarian, Servian, or 
Albanian captives, who were educated in 
habits of martial discipline, and formed 
into a regular force with the name of Jan- 
izaries. After conquest had put an end 
to personal captivity, a tax of every fifth 
male child was raised upon the Christian 
population for the same purpose. The 
arm of Europe was thus turned upon her- 
self ; and the western nations must have 
contended with troops of hereditary ro- 
bustness and intrepidity, whose emulous 
enthusiasm for the country that had adopt- 
ed them was controlled by habitual obe- 
dience to their commanders.* 

Yet, forty years after the fall of 
Constantinople, at the epoch of Charles 
VIII. 's expedition into Italy, the just ap- 
prehensions of European statesmen might 
have gradually subsided. P^xcept the 
IMorea, Negropont, and a few other un- 
important conquests, no real suspension of 
progress had been made by the ottomatk 
the Ottomans. Mahomet II. <^°"i"««'«- 
had been kept at bay by the Hungarians ; 
he had been repulsed with some ignomi- 
ny by the knights of St. John from the 
Island of Rhodes. A petty chieftain de- 

* In the long declamation of .iEneas Sylvius be-> 
fore the diet of Frankfort, in 1454, he has the follow- 
ing contrast between the European and Turkish 
militia ; a good specimen of the artifice with which 
an ingenious orator can disguise the truth, while 
he seems to be stating it most precisely. Confer- 
amus nunc Turcos et vos invicem ; et quid speran- 
dum sit, si cum lUis pugnetis, examinemus. Vos 
nati ad arma, illi tracti. Vos armati, illi inermes ; 
vos gladios versatis, lUi cultris utuntur ; vos balis- 
tas tenditis, illi arcus trahunt; vos loricae thora- 
cesque protegunt, illos culcitra tegit ; vosequos re- 
gitis, illi ab equis reguntur; vos nobiles in belluin 
ducitis, illi servos aut artifices cogunt, &c. &c., p. 
685. This, however, had little efiect upon the 
hearers, who were better judges of military atl'airs 
than the secretary of Frederick III. Pius H., or 
iEneas Sylvius, was a lively writer and a skilful in- 
triguer. Long experience had given him a consid- 
erable insight into European politics ; and his 
views are usually clear and sensible. Though not 
so learned as some popes, he knew much better 
what was going forward in his own time. But the 
vanity of displaying his eloquence betrayed him into 
a strange folly, when he addressed a very long let- 
ter to Mahomet II., explaining the Catholic faith, 
and urging him to be baptized ; in which case, so 
far from preaching a crusade against the Turks, he 
would gladly make use of their power to recover 
the rights of the church. Some of his inducements 
are curious, and must, if made public, have been 
highly gratifying to his friend Frederick III. Quip- 
pe ut arbitramur, si Christianus fuisses, mortuo 
Ladislao Ungariaj et Bohemiae rege, nemo proeter 
te sua regna fuisset adeptus. Sperassent Ungari 
post diuturna bellorurn mala sub tuo rcgimino pa 
cem, et illos Bohemi secuti fuissent ; sed cum 
esses nostrse rehgionis hostis, elegerunt Ungari, 
, &.C.— Epist. 396. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



261 



fied this mighty conqueror for twenty 
years in the mountains of Epirus ; and 
the persevering courage of his desulto- 
ry warfare with such trifling resources, 
and so little prospect of ultimate success, 
may justify the exaggerated admiration 
with which his contemporaries honoured 
the names of Scanderbeg. Once only 
the crescent was displayed on the Cala- 
brian coast [A. D. 1480] ; but the city of 
Otranto remained but a year in the pos- 



session of Mahomet. On his death a dis - 
puted succession involved his children in 
civil war. Bajazet, the eldest, obtained 
the victory ; but his rival brother Zizim 
fled to Rhodes, from whence he was re- 
moved to France, and afterward to Rome. 
Apprehensions of this exiled prince seem 
to have dictated a pacific policy to the 
reigning sultan, whose character did not 
possess the usual energy of Ottoman 
sovereigns. 



CHAPTER VII. 



HISTORY OF ECCLESIASTICAL POWER DURING THE MIDDLE AGES. 



Wealth of the Clergy — its Sources. — Encroach- 
ments on Ecclesiastical Property— their Juris- 
diction — arbitrative — coercive — their Political 
Power. — Supremacy of the Crown. — Charle- 
magne. — Change after his Death, and Encroach- 
ments of the Church in the ninth Century. — Pri- 
macy of the See of Rome — its early Stage. — 
Gregory I. — Council of Frankfort — false Decre- 
tals. — Progress of Papal Authority. — Etlects of 
Excommunication. — Lothaire. — State of the 
Church in the tenth Century. — Marriage of 
Priests. — Simony. — Episcopal Elections. — Im- 
perial Authority over the Popes. — Disputes con- 
cerning Investitures. — Gregory VII. and Henry 
IV. — Concordat of Cah.xtus. — Election by Chap- 
ters — general System of Gregory VII. — Progress 
of Papal usurpations in the twelfth Century. — 
Innocent III. — his Character and Schemes — con- 
tinual Progress of the Papacy. — Canon Law. — 
Mendicant Orders— dispensing Power. — Taxa- 
tion of the Clergy by the Popes. — Encroachments 
on Rights of Patronage. — Mandats, Reserves, 
&c. — General Disaffection towards the See of 
Rome in the thirteenth century. — Progress of 
Ecclesiastical Jurisdiction. — Immunity of the 
Clergy in Criminal Cases. — Restraints imposed 
upon their Jurisdiction — upon their Acquisition 
of Property. — Boniface VIII. — his Quarrel with 
Philip the Fair— its Termination. — Gradual De- 
cline of Papal Authority. — Louis of Bavaria. — 
Secession to Avignon and Return to Rome. — 
Conduct of Avignon Popes — contested Election 
of Urban and Clement produces the great Schism. 
— Council of Pisa — Constance — Basle. — Meth- 
ods adopted to restrain the Papal usurpations in 
England, Germany, and France. — Liberties of 
the Galilean Church. — Decline of the Papal In- 
fluence in Italy. 

At the irruption of the northern inva- 
^j, ders into the Roman empire, 
the^ctiurch they found the clergy already 
under the eiidowed with extensive posses- 
empire, sions. Besides the spontaneous 
oblations upon which the ministers of the 
Christian church had originally subsist- 
ed, they had obtained, even under the 
pagan emperors, by concealment or con- 
nivance, for the Roman law did not per- 
mit a tenure of lands in mortmain, cer- 



tain immoveable estates, the revenues of 
which were applicable to their own main- 
tenance and that of the poor.* These, 
indeed, were precarious, and liable to 
confiscation in times of persecution. But 
it was among the first eff"ects of the con- 
version of Constantine, to give not only 
a security, but a legal sanction, to the ter- 
ritorial acquisitions of the church. The 
edict of Milan, in 313, recognises the 
actual estates of ecclesiastical corpora- 
tions.! Another, published in 321, grants 
to all the subjects of the empire the pow- 
er of bequeathing their property to the 
church. t His own liberality and that of 
his successors set an example which did 
not want imitators. Passing rapidly 
from a condition of distress and persecu- 
tion to the summit of prosperity, the 
church degenerated as rapidly from her 
ancient purity, and forfeited the respect 
of future ages in the same proportion as 
she acquired the blind veneration of her 
own. Covetousness, especially, became 
almost a characteristic vice. Valentini- 
an I., in 370, prohibited the clergy from 
receiving the bequest of women ; a modi- 
fication more discreditable than any gen- 
eral law could have been. And several 
of the fathers severely reprobate the pre- 
vailing avidity of their contemporaries.^ 
The devotion of the conquering na- 
tions, as it was still less enlight- increased 
ened than that of the subjects of after hs 
the empire, so was it still more subversion, 

* Giannone, Istoria di Napoli, 1. ii., c. 8. Gib- 
bon, c. 15 and c. 20. F. Paul's Treatise on Bene- 
flees, c. 4. The last writer does not wholly con- 
firm this position ; but a comparison of the three 
seems to justify my text. 

t Giannone. Gibbon, ubi supra. F. Paul, c. 5. 

X Idem, Ibid. 

^ Giannone ubi supia. F. Paul, c. 6- 



262 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Til 



munificent. They left, indeed, the wor- 
ship of Hesus and Taranis in their for- 
ests; but they retained the elementary 
principles of that, and of all barbarous 
idolatry, a superstitious reverence for the 
priesthood, a credulity that seemed to in- 
vite imposture, and a confidence in the 
efficacy of gifts to expiate oflfences. Of 
this temper it is undeniable that the min- 
isters of religion, influenced probably not 
so much by personal covetousness as by 
zeal for the interests of their order, took 
advantage. Many of the peculiar and 
prominent characteristics in the faith and 
discipline of those ages appear to have 
been either introduced, or sedulously 
promoted, for the purposes of sordid 
fraud. To those purposes conspired the 
veneration for relics, the worship of ima- 
ges, the idolatry of saints and martyrs, 
the religious inviolability of sanctuaries, 
the consecration of cemeteries, but, above 
all, the doctrine of purgatory, and masses 
for the relief of the dead. A creed thus 
contrived, operating upon the minds of 
barbarians, lavish though rapacious, and 
devout though dissolute, naturally caused 
a torrent of opulence to pour in upon the 
church. Donations of land were contin- 
ually made to the bishops, and, in still 
more ample proportion, to the monastic 
foundations. These had not been very 
numerous in the west till the begin- 
ning of the sixth century, when Benedict 
estabhshed his celebrated rule.* A more 
remarkable show of piety, a more abso- 
lute seclusion from the world, forms 
more impressive and edifying, prayers 
and masses more constantly repeated, 
gave to the professed in these institu- 
tions a preference over the secular 
clergy. 

The ecclesiastical hierarchy never re- 
ceived any territorial endowment by law, 
either under the Roman empire or the 
kingdoms erected upon its ruins. But 
the voluntary munificence of princes, as 
well as their subjects, amply supplied the 
place of a more universal provision. 
Large private estates, or, as they were 
termed, patrimonies, not only within their 
own diocesses, but sometimes in distant 
countries, sustained the dignity of the 
principal sees, and especially that of 
Rome.f The French monarchs of the 
first dynasty, the Carlovingian family 
and their great chief, the Saxon line of 
emperors, the kings of England and 
Leon, set hardly any bounds to their lib- 

* Giannone, 1. iii., c. 6; 1. iv., c. 12. Treatise 
on Benefices, c. 8. Fleury, Huitieme Discours sur 
I'Hist. Ecclesiastique. Muratori, Dissert. 65. 

t St. Marc, t. i., p. 281. Giannone, 1. iv., c. 12. 



erality, as numerous charters still extant 
in diplomatic collections attest. Many 
churches possessed seven or eight thou- 
sand mansi ; one with but two thousand 
passed for only indifferently rich.* But 
it must be remarked, that many of these 
donations are of lands uncultivated and 
unappropriated.! The monasteries ac- 
quired legitimate riches by the culture 
of these deserted tracts, and by the pru- 
dent management of their revenues, 
which were less exposed to the ordinary 
means of dissipation than those of the 
laity. Their wealth, continually accumu- 
lated, enabled them to become the regular 
purchasers of landed estates, especially 
in the time of the crusades, when the fiefs 
of the nobility were constantly in the 
market for sale or mortgage.| 

If the possessions of ecclesiastical 
communities had all been as Sometimes 
fairly earned, we could find no- improperly 
thing in them to reprehend, acquired. 
But other sources of wealth were less 
pure ; and they derived their wealth from 
many sources. Those who entered into 
a monastery threw frequently their whole 
estates into the common stock ; and even 
the children of rich parents were expect- 
ed to make a donation of land on assu- 
ming the cowl. Some gave their proper- 
ty to the church before entering on milita- 
ry expeditions ; gifts were made by some 
to take effect after their lives, and be- 
quests by many in the terrors of dissolu- 
tion. Even those legacies to charitable 
purposes, which the clergy could with 
more decency and speciousness recom- 
mend, and of which the administration 
was generally confined to them, were fre- 
quently applied to their own benefit.^ 
They failed not, above all, to inculcate 
upon the wealthy sinner, that no atone- 
ment could be so acceptable to Heaven 
as liberal presents to its earthly dele- 
gates. || To die without allotting a por- 



* Schmidt, t. ii., p. 205. 

f Muratori, Dissert. 65. Du Cange, v. Eremus. 

i Heeren, Essai sur les Croisades, p. 166. 
Schmidt, t. iii., p. 293. 

ij Primo sacris pastoribus data est facultas, «t 
haereditatis portio in pauperes et egenos disperge- 
retur; sed sensim ecclesias quoque in pauperum 
censum venerunt, atque intestate gentis mens cre- 
dita est proclivior in eas futura fuisse : qua ex re 
pinguius illarum patnmonium evasit. Immo epis- 
copi ipsi in rem suam ejusmodi consuetudinein 
mterdum convertebant : ac tnbutum evasit, quod 
aiitea pii moris fuit. — Muratori, Antiquitates Ita 
lisB, t. v.. Dissert. 67. 

II Muratori, Dissert. 67 (Antiquit. Italiae, t. v., 
p. 1055), has preserved a curious charter of an Ital- 
ian count, who declares, that, struck with reflec- 
tions upon his sinful state, he had taken counsel 
with certain religious how he should atone for hi8 
offences. Accepto consilio ab lis excepto si re- 



Chaf. VII.] 



ECCLESIASTICAL POWER. 



263 



tion of worldly wealth to pious uses, 
was accounted almost like suicide, or a 
refusal of the last sacraments ; and hence 
intestacy passed for a sort of fraud upon 
the church, which she punished by taking 
the administration of the deceased's ef- 
fects into her own hands. This, howev- 
er, was peculiar to England, and seems 
to have been the case there only between 
the reigns of Henry III. and Edward III., 
when the bishop took a portion of the in- 
testate's personal estate, for the advan- 
tage of the church and poor, instead of dis- 
tributing it among his next of kin.* The 
canonical penances imposed upon repent- 
ant offenders, extravagantly severe in 
themselves, were commuted for money 
or for immoveable possessions ; a fertile, 
though scandalous source of monastic 
wealth, which the popes afterward di- 
verted into their own coffers by the 
usage of dispensations and indulgences.! 
The church lands enjoyed an immunity 
from taxes, though not in general from 
military service, when of a feudal tenure. 
But their tenure was frequently in what 
was called frankalmoign, without any 
obhgation of service. Hence it became 
a customary fraud of lay proprietors to 
grant estates to the church, which they 
received again by way of fief or lease, 
exempted from pubHc burdens. And as 
if all these means of accumulating what 
they could not legitimately enjoy were 
insufficient, the monks prostituted their 
knowledge of writing to the purpose of 
forging charters in their own favour, 
which might easily impose upon an igno- 
rant age, since it has required a peculiar 
science to detect them in modern times. 
Such rapacity might seem incredible in 
men cut off from the pursuits of life and 
the hope of posterity, if we did not be- 
hold every day the unreasonableness of 
avarice, and the fervour of professional 
attachment. :{: 

nunciare saeculo possem, nullum esse melius inter 
eleeinosinarum virlutes, quam si de propnis meis 
substaiiliis in monastenum concederem. Hoc 
consilium ab us hbenter, et ardenlissimo animo ego 
accepi. 

* Selden, vol. iii., p. 1676. Prynne's Constitu- 
tions, vol. lii., p. 18. Blackstone, vol. ii., chap. 32. 
In France, the lord of the fief seems to have taken 
the whole spoil. — Uu Cange, v. Intestatus. 

t Muratori, Dissert, 68. 

j Muraton's Goth, C7th, and 68th Dissertations 
on the antiquities of Italy, have furnished the prin- 
cipal materials of my text, with Father Paul's trea- 
tise on Benefices, especially chaps. 19 and 29 ; 
Giannone, loc. cit. and 1. iv., c. 12 ; 1. v., c. 6 ; 1. x., 
c, 12. Schmidt, Hist, des Allemands, t. i., p. 370 ; 
t. ii., p. 203, 463; t. iv., p. 202. Fleury, III., Dis- 
cours 8ur I'Hjst. Eccies. Du Cange, voc. Pre- 
caria. 



As an additional source of revenue, 
and in imitation of the Jewish law, the 
payment of tithes was recommended or 
enjoined. These, however, were not ap- 
plicable at first to the maintenance of a 
resident clergy. Parochial divis- „. 
ions, as they now exist, did not 
take place, at least in some countries, till 
several centuries after the establishment 
of Christianity.* The rural churches, 
erected successively as the necessities 
of a congregation required, or the piety 
of a landlord suggested, were in fact a 
sort of chapels dependant on the cathe- 
dral, and served by itinerant ministers at 
the bishop's discretion. The bishop him- 
self received the tithes, and apportioned 
them as he thought fit. A capitulary of 
Charlemagne, however, regulates their di- 
vision into three parts ; one for the bish- 
op and his clergy, a second for the poor, 
and a third for the support of the fabric 
of the church. t Some of the rural church- 
es obtained by episcopal concessions the 
privileges of baptism and burial, which 
were accompanied with a fixed share of 
tithes, and seem to imply the residence 
of a minister. The same privileges were 
gradually extended to the rest ; and thus 
a complete parochial division was finally 
established. But this was hardly the 
case in England till near the time of the 
conquest.J 

The slow and gradual manner in which 
parochial churches became independent, 
appears to be of itself a sufficient answer 
to those who ascribe a great antiquity to 
the universal payment of tithes. There 
are, however, more direct proofs that this 
species of ecclesiastical property was 
acquired not only by degrees, but with 
considerable opposition. We find the 
payment of tithes first enjoined by the 
canons of a provincial council in France 
near the end of the sixth century. From 
the ninth to the end of the twelfth, or 
even later, it is continually enforced by 
similar authority.^ Father Paul remarks, 
that most of the sermons preached about 
the eighth century inculcate this as a 
duty, and even seem to place the summit 
of Christian perfection in its perform- 

* Muratori, Dissert. 74, and Fleury, Institutions 
au Droit Ecclesiastique, t. i., p. 162, refer the ori- 
gin of parishes to the fourth century; but this 
must be limited to the most populous parts of the 
empire. 

t Schmidt, t. ii., p. 206. This seems to have 
been founded on an ancient canon. — F. Paul, c. 7. 

X Collier's Ecclesiastical History, p. 229. 

^ Sftlden's History of Tithes, vol. iii., p. 1103, 
edit. Wilkins. Titlies are said by Giannone to 
have been enforced by some papal decrees in the 
sixth century, I. iii., c. 6. 



264 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



ance.* This reluctant submission of the 
people to a general and permanent tribute 
is perfectly consistent with the eagerness 
displayed by them in accumulating vol- 
untary donations upon the church. Char- 
lemagne was the first who gave the con- 
firmation of a civil statute to these ec- 
clesiastical injunctions ; no one at least 
has, so far as I know, adduced any ear- 
lier law for the payment of tithes than 
one of his capitularies. f But it would be 
precipitate to infer, either that the prac- 
tice had not already gained ground to a 
considerable extent, through the influ- 
ence of ecclesiastical authority, or, on 
the other hand, that it became universal 
in consequence of the commands of Char- 
lemagne. J In the subsequent ages, it 
was very common to appropriate tithes, 
which had originally been payable to the 
bishop, either towards the support of par- 
ticular churches, or, according to the prev- 
alent superstition, to monastic founda- 
tions.^ These arbitrary consecrations, 
though the subject of complaint, lasted, 
by a sort of prescriptive right of the land- 
holder, till about the year 1200. It was 
nearly at the same time that the obliga- 
tion of paying tithes, which had been ori- 
ginally confined to those called predial, 
or the fruits of the earth, was extended, 
at least in theory, to every species of 
profit, and to the wages of every kind of 
labour. II 

Yet there were many hinderances that 
Spoliation thwarted the clergy in their ac- 
of church quisition of opulence, and a sort 
properly, ^f ^eflvix, that set sometimes very 
strongly against them. In times of bar- 
barous violence, nothing can thoroughly 
compensate for the inferiority of physi- 
cal strength and prowess. The ecclesi- 
astical history of the middle ages presents 
one long contention of fraud against rob- 
bery ; of acquisitions made by the church 

* Treatise on Benefices, c. 11. 

t Mably (Observations sur I'Hist. de France, t. 
1., p. 238 et 438) has, with remarkable rashness, 
attacked the current opinion, that Charlemagne 
established the legal obligation of tithes, and de- 
nied that any of his capitularies bear such an inter- 
pretation. Those which he quotes have indeed a 
different meaning ; bat he has overlooked an ex- 
press enactment in 789 ( Baluzii Capitularia, t. i., p. 
253), which admits of no question ; and I believe 
that there are others in confirmation. 

X The grant of Ethelwolf in 855 seemn to be 
the most probable origin of the right to tithes in 
England. Whether this law, for such it was, met 
with constant regard, is another question. It is 
said by Marina, that tithes were not legally estab- 
lished in Castile till the reign of Alfonso X. — En- 
sayo sobre las siete partidas, c. 359. 

(} Selden, p. 1114, et seq. Coke, 2 Inst., p. 641. 

II Selden's History of Tithes. Treatise on Ben- 
efices, c. 23. Giannone, 1. x., c. 12. 



through such means as I have described, 
and torn from her by lawless power. 
Those very men who, in the hour of 
sickness and impending death, showered 
the gifts of expiatory devotion upon her 
altars, had passed the sunshine of their 
lives in sacrilegious plunder. Notwiih 
standing the frequent instances of ex- 
treme reverence for religious institutions 
among the nobility, we should be deceiv- 
ed in supposing this to be their general 
character. Rapacity, not less insatiable 
than that of the abbots, was commonly 
united with a daring fierceness that the 
abbots could not resist. In every coun 
try, we find continual lamentation over 
the plunder of ecclesiastical possessions. 
Charles Martel is reproached with having 
given the first notorious example of such 
spoliation. It was not, however, com 
monly practised by sovereigns. But the 
evil was not the less universally felt. 
The parochial tithes, especially, as the 
hand of robbery falls heaviest upon the 
weak, were exposed to unlawful seizure. 
In the tenth and eleventh centuries noth- 
ing was more common than to see the 
revenues of benefices in the hands of lay 
impropriators, who employed curates at 
the cheapest rate ; an abuse that has nev- 
er ceased in the church.* Several at- 
tempts were made to restore these tithes ; 
but even Gregory VII. did not venture to 
proceed in it ;t and indeed it is highly 
probable that they might be held in some 
instances by a lawful title. | Sometimes 
the property of monasteries was dilapida- 
ted by corrupt abbots, whose acts, how- 
ever clandestine and unlawful, it Avas not 
easy to revoke. And both the bishops 
and convents were obliged to invest pow- 
erful lay protectors, under the name of 
advocates, with considerable fiefs, as the 
price of their assistance against depreda- 
tors. But these advocates became too 
often themselves the spoilers, and oppres- 
sed the helpless ecclesiastics for whose 
defence they had been engaged.^ 



* Du Cange, voc. Abbas. 

t Schmidt, t. iv., p. 204. At an assembly held at 
St. Denis in 997, the bishops proposed to restore 
the tithes to the secular clergy : but such a tumult 
was excited by this attempt, that the meeting was 
broken up. — Recueil des Historieiis, t. xi., pra;fat, 
p. 212. 

} Selden's Hist, of Tithes, p. 1136. The third 
council of Lateran restrains laymen from transfer- 
ring their impropriated tithes to other laymen. — 
Velly, Hist, de France, t. iii., p. 235. This seems 
tacitly to admit that their possession was lawful, at 
least by prescription. 

() For the injuries sustained by ecclesiastical pro- 
prietors, see Muratori, Dissert. 72. Du Cange, v 
Advocatus. Schmidt, t. ii., p. 220, 470; t. lii., p 
290 ; t. iv., p. 188, 202. Recueil des Historiens, t 



Chap. VII.] 



ECCLESIASTICAL POWER. 



265 



If it had not been for these drawbacks, 
the clergy must, one would imagine, have 
almost acquired the exclusive property of 
the soil. They did enjoy nearly one half 
of England, and, I beUeve, a greater pro- 
portioji in some countries of Europe.* 
They had reached, perhaps, their ze- 
nith in respect of territorial property 
about the conclusion of the twelfth cen- 
tury.f After that time, the disposition 
to enrich the clergy by pious donations 
grew more languid, and was put under 
certain legal restraints, to which I shall 
hereafter advert ; but they became rather 
more secure from forcible usurpations. 

The acquisitions of wealth by the 
Ecciesiasti- church were hardly so remarka- 
caijurisdic- ble, and scarcely contributed so 
tion. much to her greatness, as those 

innovations upon the ordinary course of 
justice, which fall under the head of 
ecclesiastical jurisdiction and immunity. 
It is hardly, perhaps, necessary to cau- 
tion the reader, that rights of territorial 
justice, possessed by ecclesiastics in vir- 
tue of their fiefs, are by no means in- 
cluded in this description. Episcopal ju- 
risdiction, properly so called, may be 
considered as depending upon the choice 
of litigant parties, upon their condition, 
and upon the subject matter of their dif- 
ferences. 

I. The arbitrative authority of ecclesi- 
Arbitra- astical pastors, if not coeval with 
live. Christianity, grew up very early in 
the church, and was natural, or even ne- 
cessary, to an insulated and persecuted 
society.^ Accustomed to feel a strong 
aversion to the imperial tribunals, and 
even to consider a recurrence to them as 
hardly consistent with their profession, 
the early Christians retained somewhat 
of a similar prejudice even after the es- 
tablishment of their religion. The arbi- 
tration of their bishops still seemed a less 
objectionable mode of settling differen- 



xi., praefat., p. 184. Martenne, Thesaurus Anec- 
dotorum, t. i.,p. 595. Vaissette, Hist, de Langue- 
doc, t. ii., p. 109, and appendix, passim. 

*• Turner's Hist, of England, vol. ii., p. 41.'?, from 
Avesbury. According to a calculation founded on 
a passage in Knyehton, the revenue of the Eng- 
lish church in 1337 amounted to 730,000 marks per 
annum. — Macpherson's Annals of Commerce, vol. 
i., p. 519. Histoire du Droit public Eccles. Fran- 
cois, t. i., p. 214. 

t The great age of monasteries in England was 
in the reigns of Henry I., Stephen, and Henry U. 
— Lyttleton's Henry U., vol. ii., p. 329. David I. of 
Scotland, contemporary with Henry II., was also a 
noted founder of monasteries.— Dalrymple's Annals. 

t I Corinth., c. iv. The word ^ovBevvfiirovs, ren- 
dered in our version " of no reputation," has been 
interpreted by some to mean, persons destitute of 
coercive authority, referees. The passage at least I 
lends to discourage suits before a secular judge. 1 



ces. And this arbitrative jurisdiction was 
powerfully supported by a law of Con- 
stantine, which directed the civil magis- 
trate to enforce the execution of episco- 
pal awards. Another edict, ascribed to 
the same emperor, and annexed to the 
Theodosian code, extended the jurisdic- 
tion of the bishops to all causes which 
either party chose to refer to it, even 
where they had already commenced in a 
secular court, and declared the bishop's 
sentence not subject to appeal. This 
edict has clearly been proved to be a 
forgery. It is evident, by a novel of Va- 
lentinian III., about 450, that the church 
had still no jurisdiction in questions of 
a temporal nature, except by means of 
the joint reference of contending parties. 
Some expressions, indeed, used by the 
emperor, seem intended to repress the 
spirit of encroachment upon the civil 
magistrates, which had probably begun 
to manifest itself. Charlemagne, how- 
ever, deceived by the spurious constitu- 
tion in the Theodosian code, repeats all 
its absurd and enormous provisions in one 
of his capitularies.* But it appears so 
inconceivable, that an enlightened sov- 
ereign should deliberately place in the 
hierarchy this absolute control over his 
own magistrates, that one might be justi- 
fied in suspecting some kind of fraud to 
have been practised upon him, or, at 
least, that he was not thoroughly aware of 
the extent of his concession. Certain it 
is, that we do not find the church, in her 
most arrogant temper, asserting the full 
privileges contained in this capitulary.f 

2. If it was considered almost as a 
general obligation upon the prim- coerciv 
itive Christians to decide their over ihe 
civil disputes by internal arbitra- clergy in 
tion, much more would this be in- 
cumbent upon the clergy. The canons 
of several councils, in the fourth and fifth 
centuries, sentence a bishop or priest to 
deposition who should bring any suit, 
civil or even criminal, before a secular 
magistrate. This must, it should appear, 
be confined to causes where the defend- 
ant was a clerk, since the ecclesiastical 
court had hitherto no coercive jurisdic- 
tion over the laity. It was not so easy 
to induce laymen, in their suits against 
clerks, to prefer the episcopal tribunal. 
Tlie emperors were not at all disposed to 
favour this species of encroachment till 



* BalnziiCapitularia, t. i.,p. 985. 

t Gibbon, c. x.t. Giannone, 1. ii.,c. 8; l.iii.,c, 6, 
1. vi., c. 7. Schmidt, t. ii., p. 20S. Fleury, '"^o 
Discours, and Institutions au Droit Ecclesiastique, 
t. ii., p. 1. Memoires de rAcad^mie des Inscrip- 
tionsj t. xxxvii., p. 566. 



266 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



the reign of Justinian, who ordered civil 
suits against ecclesiastics to be carried 
only before the bishops. Yet this was 
accompanied by a provision, that a party 
dissatisfied with the sentence might ap- 
ply to the secular magistrate, not as an 
appellant, but a co-ordinate jurisdiction ; 
for, if different judgments were given in 
the two courts, the process was ultimate- 
ly referred to the emperor.* But the 
early Merovingian kings adopted the ex- 
clusive jurisdiction of the bishop over 
causes wherein clerks were interested, 
without any of the checks which Justin- 
ian had provided. Many laws enacted 
during their reigns, and under Charle- 
magne, strictly prohibit the temporal 
magistrates from entertaining complaints 
agahist the children of the church. 

This jurisdiction over the civil causes 
And crim- of clerks was not immediately 
inai suits, attended with an equally exclu- 
sive cognizance of criminal offences im- 
puted to them, wherein the state is so 
deeply interested, and the church could 
inflict so inadequate a punishment. Jus- 
tinian appears to have reserved such of- 
fences for trial before the imperial ma- 
gistrate, though with a material provision 
that the sentence against a clerk should 
not be executed without the consent of 
tiie bishop, or the final decision of the 
emperor. The bishop is not expressly 
invested with this controlling power by 
the laws of the Merovingians ; but they 
enact that he must be present at the trial 
of one of his clerks ; which probably was 
intended to declare the necessity of his 
concurrence in the judgment. The epis- 
copal order was indeed absolutely ex- 
empted from secular jurisdiction by Jus- 
tinian ; a privilege which it had vainly 
endeavoured to establish under the ear- 
lier emperors. France permitted the 
same immunity; Chilperic, one of the 
most arbitrary of her kings, did not ven- 
ture to charge some of his bishops with 
treason, except before a council of their 
brethren. Finally, Charlemagne seems 
to have extended to the whole body of 
the clergy an absolute exemption from 
the judicial authority of the magistrate.! 



* This was also established about the same time 
by Athalaric, king of the Ostrogoths, and of 
course affected the popes, who were his subjects. 
— St. Marc, t. i., p. 60. Fleury, Hist. Eccles., t. 
vii., p. 292. 

t M^moires de I'Academie, ubi supra. Gian- 
none, 1. iii., c. 6. Schmidt, t. ii., p. 236. Fleury, 
ubi supra. 

Some of these writers do not state the law of 
Charlemagne so strongly. Nevertheless the words 
of a capitulary in 789, Ut clerici ecclesiastici ordi- 
tus si culpam incurrerint, apud ecclesiasticos judi- 



3. The character of a cause, as well 

as of the parties engaged, might over panic 
bring it within the limits of ec- «""■ "uses, 
clesiastical jurisdiction. In all questions 
simply religious, the church had an ori- 
ginal right of decision ; in those of a tem- 
poral nature, the civil magistrate had, by 
the imperial constitutions, as exclusive 
an authority.* Later ages witnessed 
strange innovations in this respect, when 
the spiritual courts usurped, under so- 
phistical pretences, almost the whole ad- 
ministration of justice. But these en- 
croachments were not, I apprehend, very 
striking till the twelfth century ; and as 
about the same time measures, more or 
less vigorous and successful, began to be 
adopted in order to restrain them, I shall 
defer this part of the subject for the 
present. 

In this sketch of the riches and juris- 
diction of the hierarchy, I may political 
seem to have implied their politi- powerof 
cal influence, which is naturally '^'^'■g)- 
connected with the two former. They 
possessed, however, more direct means 
of acquiring temporal power. Even un- 
der the Roman emperors they had found 
their road into palaces ; they were some- 
times ministers, more often secret coun- 
sellors, always necessary, but formida- 
ble allies, whose support was to be con- 
ciliated, and interference to be respected. 
But they assumed a far more decided 
influence over the new kingdoms of the 
west. They were entitled, in the first 
place, by the nature of those free gov- 
ernments, to a privilege unknown under 
the imperial despotism, that of assisting 
in the deliberative assembhes of the na- 
tion. Councils of bishops, such as had 
been convoked by Constantino and his 
successors, were limited in their func- 
tions to decisions of faith, or canons of 
ecclesiastical discipline. But the nor- 
thern nations did not so well preserve 
the distinction between secular and spir- 
itual legislation. The laity seldom, per- 
haps, gave their suffrage to the canons 
of the church ; but the church was not 
so scrupulous as to trespassing upon the 
province of the laity. Many provisions 
are found in the canons of national and 



centur, non apud saculares, are sufficiently gen- 
eral (Baluz. Capitul., t. i., p. 227): and the same 
is expressed still more forcibly in the collection 
published by Ansegisus under Louis the Debonair. 
—(Idem, pp. 904 and 1115.) See other proofs in 
Fleury, Hist. Eccles., t. i.t., p. 607. 

♦ Quoties de religione agitur, episcopos oportet 
judicare ; alteras vero causas quae ad ordinarioa 
cognitores vel ad usurn publici juris pertinent, le- 
gibus oportet audiri. Lex Arcadii et Honorii, apud 
Mem. de ['Academic, t. xxxis., p. 571 



Chap. VII.] 



ECCLESIASTICAL POWER. 



267 



even provincial councils, which relate to 
the temporal constitution of the state. 
Thus one held at Calcluith (an unknown 
place in England), in 787, enacted that 
none but legitimate princes should be 
raised to the throne, and not such as 
were engendered in adultery or incest. 
But it is to be observed that, although 
this synod was strictly ecclesiastical, 
being summoned by the pope's legate, 
yet the kings of Mercia and Northum- 
berland, with many of their nobles, con- 
firmed the canons by their signature. 
As for the councils held under the Visi- 
goth kings of Spain during the seventh 
century, it is not easy to determine 
whether they are to be considered as ec- 
clesiastical or temporal assemblies * No 
kingdom was so thoroughly under the 
bondage of the hierarchy as Spain. f The 
first dynasty of France seem to have 
kept their national convention, called 
the Field of March, more distinct from 
merely ecclesiastical councils. 

The bishops acquired and retained a 
gfeat part of their ascendency by a very 
respectable instrument of power, intel- 
lectual superiority. As they alone were 
acquainted with the art of writing, they 
were naturally intrusted with political 
correspondence, and with the framing 
of the laws. As they alone knew the 
elements of a few sciences, the educa- 
tion of royal families devolved upon them 
as a necessary duty. In the fall of Rome, 
their influence upon the barbarians wore 
down the asperities of conquest, and 
saved the provincials half the shock of 
that tremendous revolution. As captive 
Greece is said to have subdued her Ro- 
man conquerors, so Rome, in her own 
turn of servitude, cast the fetters of a 
moral captivity upon the fierce invaders 
of the north. Chiefly through the exer- 
tions of the bishops, whose ambition may 
be forgiven for its eff'ects, her religion, 
her language, in part even her laws, were 
transplanted into the courts of Paris and 
Toledo, which became a degree less bar- 
barous by imitation.^ 

Notwithstanding, however, the great 
Supremacy authority and privileges of the 
of the Slate, church, it was decidedly subject 
to the supremacy of the crown, both 
during the continuance of the western 
empire, and after its subversion. The 
emperors convoked, regulated, and dis- 
solved universal councils ; the kings of 

* Marina, Teoria de las Cortes, t. i., p. 9. 

t See instances of the temporal power of the 
Spanish bishops in Fleury, Hist. Eccles., t. viii., p. 
368, 397 ; t. ix., p. 68, &c. 

t Schmidt, t. i., p. 365. 



France and Spain exercised the same 
right over the synods of their national 
churches.* The Ostrogoth kings of Italy 
fixed by their edicts the limits withm 
which matrimony was prohibited on ac- 
count of consanguinity, and granted dis- 
pensations from them.f Though the 
Roman emperors left episcopal elections 
to the clergy and people of the diocess, 
in which they were followed by the 
Ostrogoths and Lombards, yet they often 
interfered so far as to confirm a decision, 
or to determine a contest. The kings of 
France went farther, and seem to have 
invariably either nominated the bishops, 
or, what was nearly tantamount, recom- 
mended their own candidate to the elec- 
tors. 

But the sovereign who maintained with 
the greatest vigour his ecclesi- especially 
astical supremacy was Charle- ofcharie- 
magne. Most of the capitularies mag"*^- 
of his reign relate to the discipline of the 
church ; principally, indeed, taken from 
the ancient canons, but not the less re- 
ceiving an additional sanction from his 
authority. I Some of his regulations, 
which appear to have been original, are 
such as men of high-church principles 
would, even in modern times, deem in- 
fringements of spiritual independence ; 
that no legend of doubtful authority 
should be read in the churches, but only 
the canonical books, and that no saint 
should be honoured whom the whole 
church did not acknowledge. These 
were not passed in a synod of bishops, 
but enjoined by the sole authority of the 
emperor, who seems to have arrogated a 
legislative power over the church, which 
he did not possess in temporal affairs. 
Many of his other laws relating to the 
ecclesiastical constitution are enacted in 
a general council of the lay nobility as 
well as of prelates, and are so blended 
with those of a secular nature, that the 
two orders may appear to have equally 
consented to the whole. His father J 
Pepin, indeed, left a remarkable prece- 
dent in a council held in 744, where the 
Nicene faith is declared to be established, 



* Encyclopedie, art. Concile. Schmidt, t. i., 
p. 384. De Marca, De Concordantia Sacerdotii et 
Imperii, 1. ii., c. 9, 11 ; et 1. iv., passim. 

The last of these sometimes endeavours to ex 
tenuate the royal supremacy, but his own work 
furnishes abundant evidence of it ; especially 1. vi. 
c. 19, &c. For the ecclesiastical independence of 
Spain, down to the eleventh century, see Manna, 
Ensayo sobre las siete partidas, c. 322, &c. ; and 
De Marca, 1. vi., c. 23. 

t Giannone, 1. iii., c. 6. 

X Baluzii Capitularia, passim. Schmidt, t. ii., 
D. 239 Gaillard, Vie de Charlemagne, t. liL 



268 



EliROPE DURING THE MIDDLE AGES. 



[Chap. VU. 



and even a particular heresy condemned, 
with the consent of the bishops and no- 
bles. But whatever share we may ima- 
gine the laity in general to have had in 
such matters, Charlemagne himself did 
not consider even theological decisions 
as beyond his province; and, in more 
than one instance, manifested a deter- 
mination not to surrender his own judg- 
ment, even in questions of that nature, to 
any ecclesiastical authority. 

This part of Charlemagne's conduct is 
duly to be taken into the account, before 
we censure his vast extension of ecclesi- 
astical privileges. Nothing was more re- 
mote from his character than the bigotry 
of those weak princes who have suffered 
the clergy to reign under their names. 
He acted upon a systematic plan of gov- 
ernment, conceived by his own compre- 
hensive genius, but requiring too continual 
an application of similar talents for dura- 
ble execution. It was the error of a 
superior mind, zealous for religion and 
learning, to believe that men, dedicated 
to the functions of the one, and posses- 
sing what remained of the other, might, 
through strict rules of discipline, enforced 
by the constant vigilance of the sovereign, 
become fit instruments to reform and 
civilize a barbarous empire. It was the 
error of a magnanimous spirit to judge too 
favourably of human nature, and to pre- 
sume that great trusts would be fulfilled, 
and great benefits remembered. 

It is highly probable, indeed, that an 
ambitious hierarchy did not endure with- 
out reluctance this imperial supremacy 
of Charlemagne, though it was not expe- 
dient for them to resist a prince so for- 
midable, and from whom they had so 
much to expect. But their dis- 
rrihehTe"^ satisfaction at a scheme of 
rarchyin government incompatible with 
their own objects of perfect in- 
dependence, produced a violent 
recoil under Louis the Debonair, who at- 
tempted to act the censor of ecclesias- 
tical abuses with as much earnestness 
as his father, though with very inferior 
qualifications for so delicate an under- 
taking. The bishops, accordingly, were 
among the chief instigators of those nu- 
merous revolts of his children which 
harassed this emperor. They set, upon 
one occasion, the first example of a 
usurpation which was to become very 
dangerous to society, the deposition of 
sovereigns by ecclesiastical authority. 
Louis, a prisoner in the hands of his en- 
emies, had been intimidated enough to 
undergo a public penance ; and the bish- 
ops pretended that, according to a can- 



thn nintU 
century 



on of the church, he was incapable of 
returning afterward to a secular life, or 
preserving the character of sovereignty.* 
Circumstances enabled him to retain the 
empire, in defiance of this sentence ; but 
the cimrch had tasted the pleasure of 
trampling upon crowned heads, and was 
eager to repeat the experiment. Under 
the disjointed and feeble administration 
of his posterity in their several kingdoms, 
the bishops availed themselves of more 
than one opportunity to exalt their tem- 
poral power. Those weak Carlovingian 
princes, in their mutual animosities, en- 
couraged the pretensions of a common 
enemy. Thus, Charles the Bald, and 
Louis of Bavaria, having driven their 
brother Lothaire from his dominions, 
held an assembly of some bishops, who 
adjudged him unworthy to reign, and 
after exacting a promise from the two 
allied brothers to govern better than he 
had done, permitted and commanded 
them to divide his territories.! After 
concurring in this unprecedented en- 
croachment, Charles the Bald had little 
right to complain when, some years af- 
terward, an assembly of bishops declared 
himself to have forfeited his crown, re- 
leased his subjects from their allegiance, 
and transferred his kingdom to Louis of 
Bavaria. But, in truth, he did not pre- 
tend to deny the principle which he had 
contributed to maintain. Even in his own 
behalf, he did not appeal to the rights of 
sovereigns, and of the nation whom they 
represent. " No one," says this degener- 
ate grandson of Charlemagne, " ought to 
have degraded me from the throne to 
which I was consecrated, until at least I 

* Habitu saeculi se exuens habitum poenitentia 
per impositionem manuum episcoponim snscepit; 
ut post tantam talemque pcenitenliam nemo ultra 
ad militiain saecularem redeat. Acta e.xauctoratio- 
nis Ludovici, apud Schmidt, t. ii., p. 68. There 
was a sort of precedent, though not, I think, very 
apposite, for this doctrine of implied abdication, in 
the case ofWamba, kingof the Visigoths in Spain, 
who, having been clothed with a monastic dress, 
according to a common superstition, during a dan- 
gerous illness, was afterward adjudged by a council 
incapable of resuming his crown, to which he vol- 
untarily submitted. The story, as told by an ori- 
ginal writer, quoted in Baronius, ad A. D. 681, is 
too obscure to warrant any positive inference; 
though 1 think we may justly suspect a fraudulent 
contrivance between the bishops and Ervigius, the 
successor of Wamba. The latter, besides his mo- 
nastic attire, had received the last sacrament ; after 
which he might be deemed civilly dead. — Fleury, 
3"'^ Discours sur I'Hist. Ecclesiast.,puts this case 
too strongly, when he tells us that the bishops de- 
posed Wamba ; it may have been a voluntary abdi- 
cation, influenced by superstition, or, perhaps, by 

t Schmidt, t. ii., p. 77. Velly, t. ii., p. 61 ; see 
too p. 74. 



Chap. VU.] 



ECCLESIASTICAL POWER, 



269 



had been heard and judged by the bishops, 
through whose ministry I was consecra- 
ted, who are called the thrones of God, 
in which God sitteth, and by whom he 
dispenses his judgments ; to whose pa- 
ternal chastisement I was willing to sub- 
mit, and do still submit myself."* 

These passages are very remarkable, 
and afford a decisive proof that the pow- 
er obtained by national churches, through 
the superstitious prejudices then received, 
and a train of favourable circumstances, 
was as dangerous to civil government 
as the subsequent usurpations of the Ro- 
man pontiff, against which Protestant 
writers are apt too exclusively to direct 
their animadversions. Voltaire, I think, 
has remarked, that the ninth century was 
the age of the bishops, as the eleventh 
and twelfth were of the popes. It seem- 
ed as if Europe was about to pass under 
as absolute a domination of the hierar- 
chy, as had been exercised by the priest- 
hood of ancient Egypt, or the druids of 
Gaul. There is extant a remarkable in- 
strument, recording the election of Boson, 
king of Aries, by which the bishops alone 
appear to have elevated him to the throne, 
without any concurrence of the nobility. f 
But it is inconceivable that such could 
have really been the case ; and if the 
instrument is genuine, we must suppose 
it to have been framed in order to counte- 
nance future pretensions. For*the cler- 
gy, by their exclusive knowledge of Latin, 
had it in their power to mould the lan- 
guage of pubHc documents for their own 
purposes ; a circumstance which should 
be cautiously kept in mind when we pe- 
ruse instruments drawn up during the 
dark ages. 

It was with an equal defiance of noto- 
rious truth, that the Bishop of Winches- 
ter, presiding as papal legate at an assem- 
bly of the clergy in 1141, during the civil 
war of Stephen and Matilda, asserted the 
right of electing a king of England to ap- 
pertain principally to that order ; and, by 
virtue of this unprecedented claim, raised 
Matilda to the throne. J England, indeed, 
has been obsequious, beyond most other 
countries, to the arrogance of her hierar- 
chy ; especially during the Anglo-Saxon 
period, when the nation was sunk in ig- 

* Schmidt, t. ii., p. 217. Voltaire, Velly, Gail- 
lard, &c. 

t Recueil des Historiens, t. ix., p. 304. 

X Veiitilata est causa, says the Legate, coram 
majori parte cleri AnglisB, ad cuius jus potissimum 
spectat principem eligere, simulque ordmare. In- 
vocat^ itaque primo in auxilium divinitate, filiam 
pacifici regis, &c., in Anglia Normannisque domi- 
nam eligimus, et ei tidem et manutenementum pro- 
mittimus. — Gul. Malmsb. p. 188. 



norance and effeminate superstition. Ev- 
ery one knows the story of King Edvvy, 
in some form or other, though 1 believe 
it impossible to ascertain the real circum- 
stances of that controverted anecdote. 
But, upon the supposition least favoura- 
ble to the king, the behaviour of Arch- 
bishop Odo and St. Dunstan was an in- 
tolerable outrage of spiritual tyranny.* 

But, while the prelates of these na- 
tions, each within his respect- Rjseofthe 
ive sphere, were prosecuting papal pow- 
their system of encroachment "■ its com 
upon the laity, a new scheme 
was secretly forming within the bosom 
of the church, to inthral both that and 
the temporal governments of the world 
under an ecclesiastical monarch. Long 
before the earliest epoch that can be fixed 
for modern history, and, indeed, to speak 
fairly, almost as far back as ecclesiastical 
testimonies can carry us, the bishops of 
Rome had been venerated as first in rank 
among the rulers of the church. The 
nature of this primacy is doubtless a very 
controverted subject. It is, however, 
reduced by some moderate Catholics to 
little more than a precedency attached to 
the see of Rome in consequence of its 
foundation by the chief of the apostles, 
as well as the dignity of the imperial 



* Two living writers of the Roman Catholic 
communion. Dr. Mihier, m his History of Win- 
chester, and Mr. Lingard, in his Antiquities of the 
Anglo-Saxon church, contend that Elgiva, whom 
some Protestant historians are willing to represent 
as the queen of Edwy, was but his mistress : and 
seem inclined to justify the conduct of Odo and 
Dunstan towards this unfortunate couple. They 
are unquestionably so far right, that few, if any of 
those writers, who have been quoted as authorities 
in respect of this story, speak of the lady as a 
queen or lawful wife. I must, therefore, strongly 
reprobate the conduct of Dr. Henry, who, calling 
Elgiva queen, and asserting that she was married, 
refers, at the bottom of his page, to William of 
Malmsbury, and other chronicleis, who give a to- 
tally opposite account ; especially as he does not 
intimate, by a single expression, that the nature 
of her connexion with the king was equivocal. 
Such a practice, when it proceeds, as I fear it did 
in this instance, not from oversight, but from pre- 
judice, is a glaring violation of historical integrity, 
and tends to render the use of references, that 
great improvement of modern history, a sort of 
fraud upon the reader. But the fact itself, one cer- 
tainly of little importance, is, in my opinion, not 
capable of being proved or disproved. The author- 
ities, as they are called, that is, the passages in 
monkish writers which mention this transaction, 
are neither sufficiently circumstantial, nor consist- 
ent, nor impartial, nor contemporaneous, to afford 
ground for rational belief; or, at least, there must 
always remain a strong shade of uncertainty. And 
it is plain, that different reports of the story pre- 
vailed, so as to induce some to imagine that there 
were two Elgivas, one queen, the other concubine. 
But the monltish chroniclers, experto credite, are not 
entitled to so much ceremony. 



270 



EUROPE DURING THE MIDDLE AGES. 



Chap. VII. 



citj'.* A sort of general superintendence 
was admitted as an attribute of this pri- 
macy, so that the bishops of Rome were 
entitled, and indeed bound, to remon- 
strate, when any error or irregularity 
came to their knowledge, especially in 
the western churches, a greater part of 
which had been planted by them, and 
were connected, as it were by filiation, 
with the common capital of the Roman 
empire and of Christendom.! Various 
causes had a tendency to prevent the 
bishops of Rome from augmenting their 
authority in the East, and even to dimin- 
ish that which they had occasionally ex- 
ercised ; the institution of patriarchs at 
Antioch, Alexandria, and afterward at 
Constantinople, with extensive rights of 
jurisdiction ; the difference of rituals and 
discipline ; but, above all, the many dis- 
gusts taken by the Greeks, which ulti- 
mately produced an irreparable schism 
between the two churches in the ninth 
century. But, within the pale of the Lat- 
in church, every succeeding age enhan- 
ced the power and dignity of the Roman 
see. By the constitution of the church, 
such at least as it became in the fourth 
century, its divisions being arranged in 
conformity to those of the empire, every 
province ought to have its metropolitan, 
and every vicariate its ecclesiastical ex- 
arch or primate. The Bishop of Rome 
presided, in the latter capacity, over the 
Roman vicariate, comprehending south- 
ern Italy, and the three chief Mediterra- 
nean islands. But, as it happened, none 



*• These foundations of the Roman primacy are 
indicated by V^alentinian III., a great favourer of 
that see, in a novel of the year 455 : Cum igitur se- 
dis apostoiica; primatum B. Petri meritum, qui est 
priiiceps sacerdotalis coronae, et Romanae dignitas 
civitatis, sacrae etiam synodi firmavit auctoritas. 
The last words allude to the sixth canon of the 
Nicene council, which establishes, or recognises, 
the patriarchal supremacy, in their respective dis- 
tricts, of the churches of Rome, Antioch, and 
Alexandria. — De Marca, de Concordantia Sacerdo- 
tii et Imperii, I. i., c. 8. At a much earlier period, 
Irenajus rather vaguely, and Cyprian more posi- 
tively, admit, or rather assert, the primacy of the 
church of Rome, which the latter seems even to 
have considered as a kind of centre of Catholic 
unity, though he resisted every attempt of that 
church to arrogate a controlling power. See his 
treatise De Umtate Ecclesia;. 

t Dupin, De antiqua Ecclesiae Disciplina, p. 306, 
et seqq. Histoire du Droit public ecclesiastique 
Fran(;ois, p. 149. The opinion of the Roman see's 
supremacy, though apparently rather a vague and 
general notion, as it still continues in those Cath- 
olics who deny its infallibility, seems to have pre- 
vailed very much in the fourth century. Fleury 
brings remarkable proofs of this from the writings 
of Socrates, Sozomen, Ammianus Marcellinus, 
and Optatus.— Hist. Ecclis., t. iii., p. 282, 320, 449 ; 
* iv., p. 227. 



of the ten provinces forming this division 
had any metropolitan ; so that the popes 
exercised all metropolitical functions 
within them, such as the consecration of 
bishops, the convocation of synods, the 
ultimate decision of appeals, and many 
other sorts of authority. These patriar- 
provinces are sometimes called the ciiate of 
Roman patriarchate ; the bishops ^°"'^- 
of Rome having always been reckoned 
one, generally indeed the first of the patri- 
archs ; each of whom was at the head of 
all the metropolitans within his limits, 
but without exercising those privileges 
which, by the ecclesiastical constitution, 
appertained to the latter. Though the 
Roman patriarchate, properly so called, 
was comparatively very small in extent, 
it gave its chief, for the reason mention- 
ed, advantages in point of authority which 
the others did not possess.* 

I may perhaps appear to have noticed 
circumstances interesting only to eccle- 
siastical scholars. But it is important to 
apprehend this distinction of the patri- 
archate from the primacy of Rome, be- 
cause it was by extending the boundaries 
of the former, and by applying the max- 
ims of her administration in the south of 
Italy to all the western churches, that 
she accomphshed the first object of her 
scheme of usurpation, in subverting tiie 
provincial system of government under 
the metrt»politans. Their first encroach- 
ment of this kind was in the province of 
Illyricum, which they annexed in a man- 
ner to their own patriarchate, by not per- 
mitting any bishops to be consecrated 
without their consent. f This was before 
the end of the fourth century. Their sub- 
sequent advances were, however, very 
gradual. About the middle of the sixth 
century, we find them confirming the 
elections of archbishops of Milan. | They 
came by degrees to exercise, though not 
always successfully, and seldom without 
opposition, an appellant jurisdiction over 
the causes of bishops, deposed or cen- 



* Dupin, De antiqud Eccles. Disciplina, p. 39, 
&c. Giannone, 1st. di Napoli, 1. ii., c. 8 ; 1. iii.,c. 
6. De Marca, 1. i., c. 7, et alibi. There is some 
disagreement among these writers as to the extent 
of the Roman patriarchate, which some suppose to 
have even at first comprehended all the western 
churches, though they admit that, in a more par- 
ticular sense, it was confined to the vicariate of 
Rome. 

+ Dupin, p. 66. Fleury, Hist. Eccles., t. v., p. 
373. The ecclesiastical jsrovince of Illyricum in- 
cluded Macedonia. Siricius, the author of this en 
croachment, seems to have been one of the first 
usurpers. In a letter to the Spanish bishops (A. D. 
375), he exalts his own authority very high. — De 
Marca, 1. i., c. 8. 

t St. Marc, t. i., p. 139, 153. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



271 



sured in provincial synods. This, in- 
deed, had been granted, if we believe the 
fact, by the canons of a very early coun- 
cil, that of Sardica in 347, so far as to 
permit the pope to order a revision of the 
process, but not to annul the sentence.* 
Valentinian III., influenced by Leo the 
Great, one of the most ambitious of pon- 
tiffs, had gone a great deal farther, and 
established almost an absolute judicial 
supremacy in the Holy See.f But the 
metropolitans were not inclined to sur- 
render their prerogatives ; and, upon the 
whole, the papal authority had made no 
decisive progress in France, or perhaps 
anywhere beyond Italy, till the pontifi- 
cate of Gregory I. 

[A. D. 590-604.] This celebrated person 
Gregory I ^^"^^ "^'' f^istinguished by learn- 

" ' ing, which he affected to depre- 
ciate, nor by his Uterary performances, 
which the best critics consider as below 
mediocrity, but by qualities more neces- 
sary for his purpose, intrepid ambition and 
unceasing activity. He maintained a 
perpetual correspondence with the em- 
perors and their ministers, with the sov- 

* Dupin, p. 109. De Marca.l. vi.,c. 14. These 
canons have been questioned, and Dupin does not 
seem to lay much stress on their authority, though 
I do not perceive that either he or Fleury (Hist. 
Eccles , t. iii., p. 372) doubts their genuineness. 
Sardica was a city of Illyricum, which the transla- 
tor of Mosheim has confounded with Sardes. 

Consultations or references to the Bishop of 
Rome, in difficult cases of faith or discipline, had 
been common in early ages, and were even made 
by provincial and national councils. But these 
were also made to other bishops, eminent for per- 
sonal merit or the dignity of their sees. The 
popes endeavoured to claim this as a matter of 
right. Innocent I. asserts (A. D. 402) that he was 
to be consulted, quoties fidei ratio ventilatur ; and 
Gelasius (A. D. 492) quantum ad religionem per- 
tinet, non nisi apostolica; sedi, juxta canones, de- 
betur summa judicii lotius. As the oak is in the 
acorn, so did these maxims contain the system of 
Bellarmine. — De Marca, 1. i., c. 10; and I. vii., 12. 
Dupin. 

t Son,e bishops belonging to the province of 
Hilary, metropolitan of Aries, appealed from his 
senterce to Leo, who not only entertained their 
apperl, but presumed to depose Hilary. This as- 
sumption of power would have had little effect, if 
it bad not been seconded by the emperor in very 
^'.guarded language ; hoc perenui sanctione de- 
«;ernimus, ne quid tarn episcopis Gallicanis, quam 
aliarum provinciarum, contra consuetudinem vete- 
rem liceat sine auctoritate viri vcnerabilis papae 
nrbis aeterna? tentare ; sed lUis omnibusque pro lege 
sit, quidquid san.Kit vel sanxerit apostolica; sedis 
auctoritas. — De Marca, De Concordantia Sacer- 
dotii et Imperii, 1. i., c. 8. The same emperor 
enacted, that any bishop who refused to attend the 
tribunal of the pope when summoned, should be 
compelled by the governor of liis province ; ut 
quisquis episcoporum ad judicium Romani epis- 
copi evocatus venire neglcxerit, per moderatorein 
ejusdem provincise adesse cogatur. — Id., 1. vii., c. 13. 
Dupin, De Ant. Discipl., p. 29 et 171. 



ereigns of the western kingdoms with 
all the hierarchy of the Catholic church , 
employing, as occasion dictated, the Ian 
guage of devotion, arrogance, or adula 
tion.* Claims hitherto disputed, or half 
preferred, assumed under his hands a 
more definite form ; and nations too ig- 
norant to compare precedents or discrim- 
inate principles, yielded to assertions con- 
fidently made by the authority which 
they most respected. Gregory dwelt 
more than his predecessors upon the pow- 
er of the keys, exclusively or at least 
principally committed to St. Peter, which 
had been supposed in earlier times, as it 
is now by the Galilean Catholics, to be 
inherent in the general body of bishops, 
joint sharers of one indivisible episco- 
pacy. And thus the patriarchal rights, 
being manifestly of mere ecclesiastical 
institution, were artfully confounded, or, 
as it were, merged m the more para- 
mount supremacy of the papal chair. 
From the time of Gregory, the popes 
appear in a great measure to have 
thrown away that scaffolding, and relied 
in preference on the pious veneration of 
the people, and on the opportunities 
which might occur for enforcing their 
dominion with the pretence of divine au- 
thority.! 

It cannot, I think, be said, that any 
material acquisitions of ecclesiastical 
power were obtained by the successors 
of Gregory for nearly one hundred and 
fifty years. J As none of them possessed 

* The flattering style in which this pontiff ad- 
dressed Brunehaut and Phocas, the most flagitious 
monsters of his time, is mentioned in all civil and 
ecclesiastical histories. Fleury quotes a remark- 
able letter to the patriarchs of Antioch and Alex- 
andria, wherein he says that St. Peter has one see, 
divided into three, Rome, Antioch, and Alexandria , 
stooping to this absurdity, and inconsistence with 
his real system, in order to conciliate their alliance 
against his more immediate rival, the patriarch of 
Constantinople.— Hist. Eccles., t. viii., p. 124. 

t Gregory seems to have established the appel- 
lant jurisdiction of the see of Rome, which had 
been long in suspense. Stephen, a Spanish bishop, 
having been deposed, appealed to Rome. Gregory 
sent a legate to Spain, with full powers to confirm 
or rescind the sentence. He says in his letter on 
this occasion ; a sede apostolica, qua omnium ec- 
clesiarum caput est, causa ha;c audienda ac diri- 
menda fuerat. — De Marca, I. vii., c. 18. In wri- 
ting to the bishops of France, he enjoins them to 
obey Virgilius, bishop of Aries, whom he has ap- 
pointed his legate in France, secundiim antiquani 
consuetudinem ; so that, if any contention should 
arise in the church, he may appease it by his au- 
thority, as vicegerent of the apostolic see : auc- 
toritatis suaj vigore, vicibus nempe apostohcaa 
sedis functus, discreta moderatione compescat. — 
Gregoni Opera, t. ii., p. 783 (edit. Benedict). 
Dupin, p. 34. Pasquier, Recherches de la Franc4 
1. iii., c. 9. 

i I observe that some modern publications aiiner 



273 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



vigour and reputation equal to his own, 
it might even appear that the papal influ- 
ence was retrograde. But, in eflfect, the 
principles which supported it were taking 
deep root, and acquiring strength by oc- 
casional, though not very frequent exer- 
cise. Appeals to the pope were some- 
considerable importance to a supposed concession 
of the title of universal bishop, made by the Emperor 
Phocas in 60G to Boniface III., and even appear to 
date the papal supremacy from this epoch. Those 
who have imbibed this notion may probably have 
been misled by a loose expression in Mosheim's 
Ecclesiastical History, vol. ii., p. 169; though 
the general tenour of that passage by no means 
gives countenance to their opinion. But there are 
several strong objections to our considering this as 
a leading fact, much less as marking an era in the 
history of the papacy. 1. Its truth, as commonly 
stated, appears more than questionable. The 
Roman pontiffs, Gregory 1. and Boniface III., had 
been vehemently opposing the assumption of this 
title by the patriarch of Constantinople, not as due 
to themselves, but as one to which no bishop could 
legitimately pretend. There would be something 
almost ridiculous in the emperor's immediately 
conferring an appellation on themselves, which 
they had just disclaimed ; and though this objec- 
tion would not stand against evidence, yet when 
we find no better authority quoted for the fact 
than Baronius, who is no authority at all, it retains 
considerable weight. And indeed the want of 
early testimony is so decisive an objection to any 
alleged historical fact, that, but for the strange 
prepossessions of some men, pne might rest the 
case here. Fleury takes no notice of this part of 
the story, though he tells us that Phocas compelled 
the patriarch of Constantinople to resign his title. 
2. But if the strongest proof could be advanced for 
the authenticity of this circumstance, we might well 
deny its importance. The concession of Phocas 
could have been of no validity in Lombardy, 
France, and other western countries, where nev- 
ertheless the papal supremacy was incomparably 
more established than in the east. 3. Even within 
the empire, it could have had no efficacy after the 
violent death of that usurper, which followed soon 
afterward. 4. The title of universal bishop is 
not very intelligible ; but, whatever it meant, the 
patriarchs of Constantinople had borne it before, 
and continued to bear it ever afterward. — (Dupin, 
De antiqua Disciplina, p. 329.) 5. The preceding 
popes, Pelagius II. and Gregory I., had constantly 
disclaimed the appellation, though it had been 
adopted by some towards Leo the Great in the 
council of Chalcedon (Fleury, t. viii., p. 95) ; nor 
does it appear to have been retained by the succes- 
sors of Boniface, at least for some centuries. It is 
even laid down in the decretum of Gratian, that 
the pope is not styled universal : Nee etiam Ro- 
manus pontifex universalis appellatur (p. 303, edit. 
1591); though some refer its as.sumption to the 
ninth century. — Nouveau Traite de Diplomatique, 
t. v., p. 93. In fact, it has never been a usual title. 
6. The popes had unquestionably exercised a spe- 
cies of supremacy for more than two centuries be- 
fore this time, which had lately reached a high 
point of authority under Gregory I. The rescript 
of Valentinian III., in 455, quoted in a former note, 
would certainly be more to the purpose than the 
letter of Phocas. 7. Lastly, there are no sensible 
marks of this supremacy making a more rapid 
progress for a century and a half after the pretend- 
ed grant of that emperor. 



times made by prelates dissatisfied with 
a local sentence; but his judgment of 
reversal was not always executed, ;:s we 
perceive by the instance of Bishop Wil- 
frid.* National councils were still con- 
voked by princes, and canons enacted 
under their authority by the bishops who 
attended. Though the church of Lom- 
bardy was under great subjection during 
this period, yet those of France, and 
even of England, planted as the latter 
had been by Gregory, continued to pre- 
serve a tolerable measure of independ- 
ence.! The first striking infringement 
of this was made through the influence 
of an Englishman, "W infrid, better known 
as St. Boniface, the apostle of 
Germany. Having undertaken s^- Bo""^=«- 
the conversion of Thuringia, and other 
still heathen countries, he applied to the 
pope for a commission, and was conse- 
crated bishop without any determinate 
see. Upon this occasion he took an oath 
of obedience, and became ever after- 
ward a zealous upholder of the apostol- 
ical chair. His success in the conver- 
sion of Germany was great, his reputa- 
tion eminent, which enabled him to ef- 
fect a material revolution in ecclesiasti- 
cal government. Pelagius IL had, about 
580, sent a pallium, or vest peculiar to 
metropolitans, to the Bishop of Aries, 
perpetual vicar of the Roman see in 
Gaul. I Gregory L had made a similar 
present to other metropolitans. But it 
was never supposed that they were 
obliged to w^ait for this favour before 
they received consecration, until a synod 
of the French and German bish- synod of 
ops, held at Frankfort in 742 by Frankfort 
Boniface, as legate of Pope Zachary. It 
was here enacted, that, as a token of 
their willing subjection to the see of 
Rome, all metropolitans should request 
the pallium at the hands of the pope, and 
obey his lawful commands.^ This was 



* I refer to the English historians for the history 
of Wilfrid, which neither altogether supports, nor 
much impeaches the independence, of our Anglo- 
Sa.xon church in 700; a matter hardly worth so 
much contention as Usher and Stillingfleet seem to 
have thought. The consecration of Theodore by 
Pope Vitalian in 608 is a stronger fact, and cannot 
be got over by those injudicious Protestants, who 
take the bull by the horns. 

t Schmidt, t. i., p. 386, 394. 

j Ut ad instar suum, in Galliarum partibus primi 
sacerdolis locum obtineat, et quidquid ad guber- 
nationem vel dispensationem ecclesiastici status 
gerendum est, servatis patrum regulis, et sedis 
apostolicje constitutis, faciat. Preterea, pallium 
illi concedit, &c.— Dupin, p. 34. Gregory I. con- 
firmed this vicariat to Virgilius, bishop of Aries, 
and gave him the power of convoking synods.— De 
Marca, 1. vi., c. 7. 

^ Decrevimus, says Boniface, in nostro synodal! 



Chap. VII. 



ECCLESIASTICAL POWER. 



273 



con.-^ trued by the popes to mean a prom- 
ise of obedience before receiving the 
pall, which was changed in after times 
by Gregory VII. into an oath of fealty.* 

This council of Frankfort claims a 
leading place as an epoch in the historj' 
of the papacy. Several events ensued, 
chielly of a political nature, which rapid- 
ly elevated that usurpation almost to its 
gr-^ 'test height. Subjects of the throne 
of 1 Constantinople, tlie popes had not as 
jci ,i\:<- red, unless by mere admoni- 
tion, wi. I ^e temporal magistrate. The 
first instance wherein the civil duties of 
a nation and the rights of a crown appear 
to have been submitted to his decision, 
was in that famous reference as to the 
deposition of Childeric. It is impossible 
to consider this in any other light than as 
a point of casuistry laid before the first 
religious judge in the church. Certainly 
the Franks, who raised the king of their 
choice upon their shields, never dreamed 
that u (b reign priest liad conferred upon 
him the right of governing. Yet it was 
easy for succeeding advocates of Rome 
to construe this transaction very favour- 
ably for its usurpation over the thrones 
of the earth. t 

' shall but Just glance at the subsequent 
pulilical revolut'ous, of that period: the 
invasion of Italy by Pepin, his donation 
of the exarc Hte to the Holy See, the 
conquest of Lum^ardy by Charlemagne, 
the patriarchate of Rome coaiened upon 
both these princes, and the revival of the 
Western Empire in the person of the lat- 

conventu, et confess! sumus fidem catholicam, ct 
unitatem et subjectionem KomanaB ecclesiae fine 
tenus servare, S. Petro et vicario ejus velle subjici, 
metropolitanos pallia ab ilia sede quaerere, et, per 
omnia, praecepta S. Petri canonice sequi. — De 
Marca, 1. vi., c. 7. Schmidt, t. i., p. 424, 438, 446. 
This writer justly remarks the obligation which 
Rome had to St. Boniface, who anticipated the 
system of Isidore. We have a letter from him to 
the English clergy, with a copy of canons passed 
in one of his synods, for the exaltation of the apos- 
tolic see, but the church of England was not then 
inclined to acknowledge so great a supremacy in 
Rome. — Collier's Eccles. History, p. 128. 

In the eighth general council, that of Constanti- 
nople in 872, this prerogativeof sending the pallium 
to metropolitans was not only confirmed to the 
pope, but extended to the other patriarchs, who had 
every disposition to become as great usurpers as 
their more fortunate elder brother. 

» De Marca. ubi supra. Schmidt, t. ii., p. 262. 
According to the latter, this oath of fidelity was 
exacted in the ninth century; which is very prob- 
able, since Gregory VII. himself did but fill up the 
sketch which Nicholas I. and John VIH. had de- 
lineated. I have since found this confirmed by 
Gratian, p. 305. 

+ Eginhard says that Pepin was made king per 
tactoritatem Romani pontificis ; an ambiguous word, 
which may rise to command, or sink to advice, ac- 
c<irdmg to the disposition of the interpreter. 



ter. These events had a natural tenden- 
cy to exalt the papal supremacy, which 
it is needless to indicate. But a circum- 
stance of a very different nature contrib- 
uted to this in a still greater degree. 
About the conclusion of the eighth cen- 
tury, there appeared, under the name of 
one Isidore, an unknown person, a col- 
lection of ecclesiastical canons, now 
commonly denominated the False False De- 
Decretals.* These purported to "eiais. 
be rescripts or decrees of the early bish- 
ops of Rome ; and their effect was to di- 
minish the authority of metropohtans 
over their suffragans, by establishing an 
appellant jurisdiction of the Roman See 
in all causes, and by forbidding national 
councils to be holden without its consent. 
Every bishop, according to the decretals 
of Isidore, was amenable only to the im- 
mediate tribunal of the pope ; by which 
one of the most ancient rights of the pro- 
vincial synod was abrogated. Every ac- 
cused person might not only appeal from 
an inferior sentence, but remove an un- 
finished process before the supreme pon- 
tiff. And the latter, instead of directing 
a revision of the proceedings by the ori- 
ginal judges, might annul Ihem by his own 
authority; a strain of jurisdiction beyond 
the canons of Sardica, but certainly war- 
ranted by the more recent practice of 
Rome. New sees were not to be erect- 
ed, nor bishops translated from one see 
to another, nor their resignations accept- 
ed, without the sanction of the pope. 
They were still indeed to be consecrated 
by the metropolitan, but in the pope's 
name. It has been plausibly suspected 
that these decretals were forged by some 
bishop, in jealousy or resentment; and 
their general reception may at least be 
partly ascribed to such sentiments. The 
archbishops were exceedingly powerful, 
and might often abuse their superiority 
over inferior prelates ; but the whole 

* The era of the False Decretals has not been 
precisely fixed ; they have seldom been supposed, 
however, to have appeared much before 800. But 
there is a genuine collection of canons published 
by Adrian I., in 785, which contain nearly the same 
principles, and many of which are copied by Isi- 
dore, as well as Charlemagne in his capitularies. 
— De Marca, J. vii., c. 20. Giannone, 1. v., c. 6. 
Dupin, de Antiqu4 Disciplina, p. 133. Fleury, 
Hist. Ecclcs., t. ix., p. 500, seems to consider the ae- 
cretals as older than this collection of Adrian ; but 
I have not observed the same opinion in any other 
writer. The right of appeal from a sentence of the 
metropolitan deposing a bishop to the Holy See is 
positively recognised in the capitularies of Lo'iis 
the Debonair (Baluze, p. 1000), the three last 
books of which, according to the collection of An- 
segisus, are said to be aposlolicu auctoritate robo- 
rata, quia his cudendis maximo apostolica intfirfuit 
legatio, p. 1132. 



274 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII, 



episcopal aristocracy had abundant rea- 
son to lament their acquiescence in a 
system of which the metropohtans were 
but the earliest victims. Upon these 
spurious decretals was built the great 
fabric of papal supremacy over the dif- 
ferent national churclies ; a fabric which 
has stood after its foundation crumbled 
beneath it ; for no one has pretended 
to deny, for the last two centuries, that 
the imposture is too palpable for any but 
the most ignorant ages to credit.* 

The Galilean church made for some 
time a spirited, though unavailing strug- 
gle, against this rising despotism. Greg- 
ory IV., having come into France to abet 
the children of Louis the Debonair in 
Papal en- their rebellion, and threatened to 
croach- excommunicate the bishops who 

ments on ,, , , ^ 

the hie- adhered to the emperor, was re- 
rarchy. pelled with indignation by those 
prelates. If he comes here to excommu- 
nicate, said they, he shall depart hence 
excommunicated.! In the subsequent 
reign of Charles the Bald, a bold defend- 
er of ecclesiastical independence was 
found in Hincmar, archbishop of Rheims, 
the most distinguished statesman of his 
age. Appeals to the pope, even by 
ordinary clerks, had become common, 
and the provincial councils, hitherto the 
supreme spiritual tribunal as well as 
legislature, were falling rapidly into de- 
cay. The frame of church government, 
whicn had lasted from the third or fourth 
century, was nearly dissolved ; a refracto- 
ry bishop was sure to invoke the supreme 
court of appeal, and generally met there 
with a more favourable judicature. Hinc- 
mar, a man equal in ambition, and almost 
m public estimation, to any pontiff, some- 
trnies came off successfully in his conten- 
tions with Rome. J But time is fatal to 
the unanimity of coalitions ; the French 

* I have not seen any account of the decretals 
so clear and judicious as in Schmidt's History of 
Germany, t. ii., p. 249. Indeed, all the ecclesiasti- 
cal part of that work is executed in a very superior 
manner. See also DeMarca, 1. iii., c. 5 ; 1. vii.,c.20. 
The latter writer, from whom I have derived much 
information, is by no means a strenuous adversary of 
ultramontane pretensions. In fact, it was his ob- 
ject to please both in France and at Rome, to be- 
come both an archbishop and a cardinal. He failed 
nevertheless of the latter hope ; it being impossible 
at that time (1650) to satisfy the papal court, with- 
out sacrificing altogether the Gallican church and 
the crown. 

t De Marca, 1. iv., c. 11. Velly, &c. 

t De Marca, 1. iv., c. 68, &c. ; 1. vi., c. 14, 28 ; 1. 
vii.,c.21. Dupin, p. 133, &c. Hist, du Droit Ec- 
cles. FranQois, p. 188, 224. Velly, &c. Hincmar, 
however, was not consistent ; for, having obtained 
the see of Rheims in an equivocal manner, he had 
applied for confirmation at Rome, and in other re- 
spects impaired the Gallican rights.— Pasquier, Re- 
cnerches de la France, 1. iii., c. 12. 



bishops were accessible to superstitious 
prejudice, to corrupt influence, to mutual 
jealousy. Above all, they were con- 
scious that a persuasion of the pope's 
omnipotence had taken hold of the laity. 
Tliough they complained loudly, and in- 
voked, like patriots of a dying state, 
names and principles of a freedom that 
was no more, they submitted almost in 
every instance to the continual usurpa- 
tions of the Holy See. One of those, 
which most annoyed their aristocracy, 
was tlte concession to monasteries of 
exemption from episcopal authority. 
These had been very uncommon till about 
the eighth century, after which Ihcy 
were stitdiously multiplied.* It was 
naturally a favourite object with the ab- 
bots ; and sovereigns, in those ages of 
blind veneration for monastic establish- 
ments, were pleased to see their own 
foundations rendered, as it would seem, 
more respectable by privileges of inde- 
pendence. The popes had a closer inter- 
est in granting exemptions, which at- 
tached to them the regular clergy, and 
lowered the dignity of the bishops. In 
the eleventh and twelfth centuries, whole 
orders of monks were declared exempt at 
a single stroke ; and the abuse began to 
awaken loud complaints, though it did 
not fail to be aggravated afterward. 

The principles of ecclesiastical su- 
premacy were readily applied by ^^^ „p„„ 
the popes to support still more m\\ gov- 
insolent usurpations. Chiefs by ernments. 
divine commission of the whole church, 
every earthly sovereign must be 
subject to their interference. The 
bishops indeed had, with the common 

* The earliest instance of a papal exemption is 
in 455, which indeed is a respectable antiquity. 
Others scarcely occur till the pontificate of Zacha- 
ry, in the middle of the eighth century, who granted 
an exemption to Monte Casino, ita ut nullius juri 
subjaceat, nisi solius Romani pontificis. See this 
discussion in Giannone, 1. v., c. 6. Precedents for 
the exemption of monasteries from episcopal juris- 
diction occur in Marculfus's forms, compiled to- 
wards the end of the seventh century, but these 
were by royal authority. The kings of France 
were supreme heads of their national church. — 
Schmidt, t. i., p. 382. De Marca, 1. iii., c. 16. 
Fleury, Institutions au Droit, t. i., p. 288. Murato- 
ri, Dissert. 70 (t. iii., p. 404, Italian), is of opinion 
that exemptions of monasteries from episcopal visi- 
tation did not become frequent in Italy till theelev- 
enth century; and that many charters of this kind 
are forgeries. It is held also by some English an- 
tiquaries, that no Anglo-Saxon monastery was ex- 
empt, and that the first instance is that of Battle Ab- 
bey under the Conqueror ; the charters of an earlier 
date having been forged. — Hody on Convocations, 
p. 20 and 170. It is remarkable that this grant is 
made by William, and confirmed by Laufranc— 
Collier, p. 256. Exemptions became very usual is 
England afterward. — Henry, vol. v , p. 337. 



C«AP. VII ] 



ECCLESIASTICAL POWER. 



275 



weapons of their order, kept their own 
sovereigns in check ; and it could not 
seem any extraordinary stretch in their 
supreme head to assert an equal preroga- 
tive. Gregory IV., as I have mentioned, 
became a party in the revolt against 
Louis I. ; but he never carried his threats 
of excommunication into effect. The 
first instance where the Roman pontiffs 
actually tried the force of their arms 
against a sovereign, was the excommu- 
nication of Lothaii-e, king of Lorraine, and 
grandson of Louis the Debonair. This 
prince had repudiated his wife upon un- 
just pretexts, but with the approbation 
of a national council, and had subse- 
quently married his concubine. Nicho- 
las L, the actual pope, despatched two le- 
gates to investigate this business, and de- 
cide according to the canons. They hold 
a council at Metz, and confirm the divorce 
and marriage. Enraged at this conduct 
of his ambassadors, the pope summons 
a council at Rome, annuls the sentence, 
deposes the archbishops of Treves and 
Cologne, and directs the king to discard 
hio mistress. After some shuffling on 
the part of Lothaire, he is excommunica- 
ted ; and, in a short time, we find both 
the king and his prelates, who had begun 
with expressions of passionate contempt 
towards the pope, suing humbly for abso- 
lution at the feet of Adrian IL, successor 
of Nicholas, which was not granted with- 
out difficulty. In all its most impudent 
pretensions, the Holy See has attended 
to the circumstances of the time. Lo- 
thaire had powerful neighbours, the kings 
of France and Germany, eager to invade 
his dominions on the first intimation from 
Rome ; while the real scandalousness of 
his behaviour must have intimidated his 
conscience, and disgusted his subjects. 

Excommunication, whatever opinions 
Excommu- may be entertained as to its re- 
nications. ligjous efficacy, was originally 
nothing more in appearance than the ex- 
ercise of a right which every society 
claims, the expulsion" of refractory mem- 
bers from its body. No direct temporal 
disadvantages attended this penalty for 
several ages ; but, as it was the most se- 
vere of spiritual censures, and tended to 
exclude the object of it not only from a 
participation in religious rites, but, in a 
considerable degree, from the intercourse 
of Christian society, it was used spa- 
ringly, and upon the gravest occasions. 
Gradually, as the church became more 
powerful and more imperious, excommu- 
nications were issued upon every provo- 
cation, rather as a weapon of ecclesias- 
tical warfare than with any regard to its 
S 2 



original intention. There was certainly 
some pretext for many of these censures, 
as the only means of defence within the 
reach of the clergy, when their posses- 
sions were lawlessly violated.* Others 
were founded upon the necessity of enfor- 
cing their contentious jurisdiction, which, 
while it was rapidly extending itself over 
almost all persons and causes, had not 
acquired any proper coercive process. 
The spiritual courts in England, whose 
jurisdiction is so multifarious, and, in 
general, so little of a religious nature, 
had till lately no means even of compel- 
ling an appearance, much less of enfor- 
cing a sentence, but by excommunica- 
tion. f Princes, who felt the inadequacy 
of their own laws to secure obedience, 
called in the assistance of more formida- 
ble sanctions. Several capitularies of 
Charlemagne denounce the penalty of 
excommunication against incendiaries, or 
deserters from the army. Charles the 
Bald procured similar censures against 
his revolted vassals. Thus the boundary 
between temporal and spiritual offences 
grew every day less distinct; and the 
clergy were encouraged to fresh en- 
croachments, as they discovered the se- 
cret of rendering them successful. | 

The civil magistrate ought undoubted- 
ly to protect the just rights and lawful 
jurisdiction of the church. It is not so 
evident that he should attach temporal 
penalties to her censures. Excommu- 
nication has never carried such a pre- 
sumption of moral turpitude as to disable 
a man, upon any solid principles, from 
the usual privileges of society. Super- 
stition and tyranny, however, decided 
otherwise. The support due to church 
censures by temporal judges is vaguely 
declared in the capitularies of Pepin and 
Charlemagne. It became, in later ages, 
a more established principle in France 
and England, and, I presume, in other 
countries. By our common law, an ex- 
communicated person is incapable of be- 
ing a witness, or of bringing an action , 
and he may be detained in prison until 
he obtains absolution. By the establish- 
ments of St. Louis, his estate or person 
might be attached by the magistrate. § 



* Schmidt, t. iv., p. 217. Fleury, Institutions au 
Droit, t. 11., p. 192. 

t By a recent statute, 53 G. III., c. 127, the writ 
De excommunicato capiendo, as a process in con- 
tempt, was abolished in England, but retained in 
Ireland. 

J Mem. de I'Acad. des Inscript., t. x.txix., p. 596, 
&c. 

() Ordoiinances des Rois, t. i., p. 121. But an 
excommunicated person might sue in the lay, 
though not in the spiritual, court. No law seems 



276 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VJl. 



These actual penalties were attended by 
marks of abhorrence and ignominy still 
more calculated to make an impression 
on ordinary minds. They were to be 
shunned, like men infected with leprosy, 
by their servants, their friends, and their 
families. Two attendants only, if we 
may trust a current history, remained 
with Robert, king of France, who, on ac- 
count of an irregular marriage, was put 
to this ban by Gregory V. ; and these 
threw all the meats which had passed his 
table into the fire.* Indeed, the mere in- 
tercourse with a proscribed person incur- 
red what was called the lesser excom- 
munication, or privation of the sacra- 
ments, and required penitence and abso- 
lution. In some places, a bier was set 
before the door of an excommunicated 
individual, and stones thrown at his win- 
dows ; a singular method of compelling 
his submission.! Everywhere the ex- 
communicated were debarred of a regular 
sepulture, which, though obviously a mat- 
ter of police, has, through the supersti- 
tion of consecrating burial-grounds, been 
treated as belonging to ecclesiastical con- 
trol. Their carcasses were supposed to 
be incapable of corruption, which seems 
to have been thought a privilege unfit for 
those who had died in so irregular a man- 
ner-t 

But as excommunication, which at- 
tacked only one and perhaps a 
Interdicts, i i j • ^ i 

hardened snmer, was not always 

efficacious, the church had recourse to 
a more comprehensive punishment. For 
the offence of a nobleman, she put a 
county, for that of a prince, his entire 
kingdom, under an interdict, or suspen- 
sion of religious offices. No stretch of 
her tyranny was perhaps so outrageous 
as this. During an interdict, the church- 
es were closed, the bells silent, the dead 
unburied, no rite but those of baptism 
and extreme unction performed. The 
penalty fell upon those who had neither 
partaken nor could have prevented the 
offence ; and the offence was often but a 
private dispute, in which the pride of a 
pope or bishop had been wounded. In- 
terdicts were so rare before the time of 

to have been so severe in this respect as that of 
England ; though it is not strictly accurate to say 
with Dr. Cosens (Gibson's Codex, p. 1102), that 
the writ De excommun. capiendo is a privilege pe- 
culiar to the English church. 

* Velly, t. ii. 

t Vaissette, Hist, de Languedoc, t. iii. Appendix, 
p. 350. I)u Cange, v. Excomrnunicatio. 

t Du Cange, v. Imblocatus : where several au- 
thors are referred to. for the constant opinion 
among the members of the Greek church, that the 
bodies of excommunicated persons remain in sta- 
tu quo. 



Gregory VII., tliat some have referred 
them to him as their author; instances 
may however be found of an earlier date, 
and especially that which accompanied 
the abovementioned excommunication of 
Robert, king of France. They were af- 
terward issued not unfrequently against 
kingdoms ; but in particular districts they 
continually occurred.* 

This was the mainspring of the ma- 
chinery that the clergy set in motion, the 
lever by which they moved the world. 
From the moment that these interdicts 
and excommunications had been tried, 
the powers of the earth might be said to 
have existed only by sufferance. Nor 
was the validity of such denunciations 
supposed to depend upon their justice. 
The imposer indeed of an unjust excom- 
munication was guilty of a sin ; but the 
party subjected to it had no remedy but 
submission. He who disregards such a 
sentence, says Beaumanoir, renders his 
good cause bad.f And indeed, without 
annexing so much importance to the di- 
rect consequences of an ungrounded cen- 
sure, it is evident that the received the- 
ory of religion concerning the indispen- 
sable obligation and mysterious efficacy 
of the rites of communion and confession, 
must have induced scrupulous minds to 
make any temporal sacrifice rather than 
incur their privation. One is rather sur- 
prised at the instances of failure, than 
of success, in the employment of these 
spiritual weapons against sovereigns, or 
the laity in general. It was perhaps 
a fortunate circumstance for Europe, 
that they were not introduced, upon a 
large scale, during the darkest ages of 
superstition. In the eighth or ninth cen- 
turies they would probably have met with 
a more implicit obedience. But after 
Gregory YII., as the spirit of ecclesi- 
astical usurpation became more violent, 
there grew up by slow degrees an op- 
posite feeling in the laity, which ripened 
into an alienation of sentiment from the 
church, and a conviction of that sacred 
truth, which superstition and sophistry- 
have endeavoured to eradicate from the 
heart of man, that no t}^rannical govern- 
ment can be founded on a divine commis- 
sion. 

Excommunications had very seldom, if 
ever, been levelled at the head „ .. 

^ ' ■ 1 ,- i, • Further 

of a sovereign before the m- usurpation 
stance of Lolhaire. His igno- "'""'« 
minions submission, and the gen- ^°^^^' 

* Giannone, 1. vii., c. 1. Schmidt, t. iv., p. 220 
Dupin, De antiqua Eccl. Disciplina, p. 288. St. 
Marc, t. ii., p. 535. Fleury, Institutions, t. ii., p. 
200. t P. 261. 



Chap. HI] 



ECCLESIASTICAL POWER. 



277 



* De Marca, 1. iv., c. IL 

t Schmidt, t. ii., p. 260. 

t Durioribusdeinceps sciens te verberibus erudi- 
endutn. — Schmidt, p. 261. 

^ Baluz. Capitularia, t. ii., p. 25L Schmidt, t. 
ii., p. 197. 

11 Id., p. 199. 



eral feebleness of the Cailovingian line, 
produced a repetition of the menace at 
least, and in cases more evidently be- 
yond the cognizance of a spiritual au- 
thority. Upon the death of this Lothaire, 
his uncle, Charles the Bald, having pos- 
sessed himself of Lorraine, to which the 
Emperor Louis IL had juster pretensions, 
the pope, Adrian IL, warned him to desist, 
declaring that any attempt upon that 
country would bring down the penalty of 
excommunication. Sustained by the in- 
trepidity'of Hincmar, the king did not ex- 
hibit his usual pusillanimity, and the pope 
in this instance failed of success.* Uut 
John VIII. , the next occupier of the 
chair of St. Peter, carried his pretensions 
to a height which none of his predeces- 
sors had reached. The Carlovingian 
princes had formed an alliance against 
Boson, the usurper of the kingdom of 
Aries. The pope writes to Charles the 
Fat : I have adopted the illustrious prince 
Boson as my son ; be content therefore 
with your own kingdom ; for I shall in- 
stantly excommunicate all who attempt 
to injure my son.f In another letter to 
the same king, who had taken some prop- 
erty from a convent, he enjoins him to 
restore it within sixty days, and to cer- 
tify by an envoy that he had obeyed the 
command ; else an excommunication 
would immediately ensue, to be fol- 
lowed by still severer castigation, if the 
king should not repent upon the first 
punishment. J These expressions seem 
to intimate a sentence of deposition from 
his throne, and thus anticipate by two 
hundred years the famous era of Grego- 
ry VII., at which we shall soon arrive. 
In some respects, John VIII. even ad- 
vanced pretensions beyond those of Greg- 
ory. He asserts very plainly a right of 
choosing the emperor, and may seem 
indirectly to have exercised it in the 
election of Charles the Bald, who had 
not primogeniture in his favour.i^i This 
prince, whose restless ambition was uni- 
ted with meanness as well as insincerity, 
consented to sign a capitulation, on his 
coronation at Rome, in favour of the 
pope and church, a precedent which was 
improved upon in subsequent ages.|| 
Rome was now prepared to rivet her fet- 
ters upon sovereigns, and at no period 
have the condition of society and the 
circumstances of civil government been 



so favourable for her ambition, 
consummation was still sus- 



But the 



pended, and even her progress geifcracy in 
arrested, for more than a hun- "le tenth 
dred and fifty years. This '''"""'5- 
dreary interval is filled up, in the annals 
of the papacy, by a series of revolutions 
and crimes. Six popes were deposed, 
two murdered, and one mutilated. Fre- 
quently two or even three competitors, 
among whom it is not always possible by 
any genuine criticism to distinguish the 
true shepherd, drove each other alter- 
nately from the city. A few respectable 
names appear thinly scattered through 
this darkness ; and sometimes, perhaps, 
a pope, who had acquired estimation by 
his private virtues, may be distinguished 
by some encroachment on the rights of 
princes, or the privileges of national 
churches. But, in general, the pontiffs of 
that age had neither leisure nor capacity 
to perfect the great system of temporal 
supremacy, and looked rather to a vile 
profit from the sale of episcopal confirm- 
ations, or of exemptions to monaster- 
ies.* 

The corruption of the head extended 
naturally to all other members Corruption 
of the church. All writers con- of morals, 
cur in stigmatizing the dissoluteness and 
neglect of decency that prevailed among 
the clergy. Though several codes of 
ecclesiastical discipline had been compi- 
led by particular prelates, yet neither 
these nor the ancient canons were much 
regarded. The bishops, indeed, who were 
to enforce them, had most occasion to 
dread their severity. They were obtru- 
ded upon their sees, as the supreme pon- 
tiffs were upon that of Rome, by force or 
corruption. A child of five years old 
was made archbishop of Rheims. The 
see of Narbonne was purchased for an- 
other at the age of ten.f By this relax- 
ation of morals the priesthood began to 
lose its hold upon the prejudices of man- 
kind. These are nourished chiefly, in- 
deed, by shining examples of piety and 
virtue, but also, in a superstitious age, by 
ascetic observances, by the fasting and 
watching of monks and hermits; who 
have obviously so bad a lot in this life, 
that men are induced to conclude that 
they must have secured a better rever- 
sion in futurity. The regular clergy, ac- 
cordingly, or monastic orders, who prac- 



* Schmidt, t. ii., p. 414. Mo.sheim. St. Marc. 
Muratori, Ann. d'ltalia, passim. 

t VaissRtte, Hist, de Languedoc, t. ii., p. 252. It 
was almost general in the church to have bishops 
under twenty years o!d. — Idem, p. 149. Even the 
Pope Benedict IX. is said to have been only 
twelve, but this has been doubled. 



278 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII 



tised, at least apparently, the specious 
impostures of self-mortification, retained 
at all times a far greater portion of re- 
spect than ordinary priests, though de- 
generated themselves, as was admitted, 
from their primitive strictness. 

Two crimes, or at least violations of 
Neglect of ecclesiastical law, had become 
rules of almost universal in the eleventh 
celibacy, century, and excited general in- 
dignation ; the marriage or concubinage 
of priests, and the sale of benefices. By 
an effect of those prejudices in favour of. 
austerity to whiclv I have just alluded, 
celibacy had been, from very early times, 
enjoined as an obligation upon the cler- 
gy. Some of the fathers permitted those 
already married for the first time, and to 
a virgin, to retain their wives after ordi- 
nation, as a kind of indulgence, of which 
it was more laudable not to take advan- 
tage ; and this, after prevailing for a 
length of time in the Greek church, was 
sanctioned by the council of Trullo in 
691,* and had ever since continued one 
of the distinguishing features of its dis- 
cipline. The Latin church, however, did 
not receive these canons ; and has uni- 
formly persevered in excluding the three 
orders of priests, deacons, and subdea- 
cons, not only from contracting matri- 
mony, but from cohabiting with wives 
espoused before their ordination. The 
prohibition, however, during some ages, 
existed only in the letter of her canons. f 
In every country, the secular or parochial 
clergy kept women in their houses, upon 
more or less acknowledged terms of in- 
tercourse, by a connivance of their eccle- 
siastical superiors, which almost amount- 
ed to a positive toleration. The sons of 
priests were capable of inheriting by the 
law of France and also of Castile.| Some 

* This council was held at Constantinople in 
the dome of the palace, called Trullus, by the Lat- 
ins. The word Trullo, though soicEcistical, is 
used, I believe, by ecclesiastical writers in Eng- 
lish.— St. Marc, t. i., p. 294. Art de verifier les 
Dates, t. i., p. 157. Fleury, Hist. Eccles., t. ix., p. 
110. Bishops are not within this permission, and 
cannot retain their wives by the discipline of the 
Greek church. 

t This prohibition is sometimes repeated in 
Charlemagne's capitularies; but I have not ob- 
served that he notices its violation as a notorious 
abuse. It is probable, therefore, that the open con- 
cubinage or marriage of the clergy was not general 
until a later period. And Fleury declares, that he 
has found no instance of it before 893, in the case 
of a parish priest at Chalons, who gave great scan- 
dal by publicly marrying.— Hist. Eccles., t. xi., p. 
594. 

X Recueil des Historiens, t. xi., preface. l\Iari- 
na, Ensayo sobre las siete partidas, c. 221, 223. 
This was by virtue of the general indulgence 
shown by the customs of that country to concubi- 
nage, or barragania ; the children of such a union 



vigorous efforts had been made in England 
by Dunstan, with the assistance of King 
Edgar, to dispossess the married canons, 
if not the parochial clergy, of their beJie- 
fices ; but the abuse, if such it is to be 
considered, made incessant progress, till 
the middle of the eleventh century. 
There was certainly much reason for the 
rulers of the church to restore this part 
of their discipline, since it is by cutting 
off her members from the charities of 
domestic life that she secures their en- 
tire affection to her cause, and- fenders 
them, like veteran soldiers, independent 
of every feeling but that of fidelity to 
their commander, and regard to the in- 
terests of their body. Leo IX., accord- 
ingly, one of the first pontiffs who retriev- 
ed the honour of the apostolic chair, after 
its long period of ignominy, began in 
good earnest the difficult work of enfor- 
cing celibacy among the clergy.* His 
successors never lost sight of this essen- 
tial point of discipline. It was a struggle 
against the natural rights and strongest 
affections of mankind, which lasted for 
several ages, and succeeded only by the 
toleration of greater evils than those it 
was intended to remove. The laity, in 
general, took part against the married 
priests, who were reduced to infamy and 
want, or obhged to renounce their dear- 
est connexions. In many parts of Ger- 
many, no ministers were left to perform 
divine services.f But perhaps there was 
no country where the rules of celibacy 
met with so little attention as in England. 
It Avas acknowledged, in the reign of Hen- 
ry I., that ihe greater and better part of 
the clergy were married ; and that prince 
is said to have permitted them to retain 
their wives. | But the hierarchy never 

always inheriting in default of those born in sol 
emn wedlock. — Ibid. 

* St. Marc, t. iii., p. 152, 164, 219, 602, &c. 

t Schmidt, t. iii., p. 279. Marterne, Thesaurus 
Anecdotorum, t. i., p. 230. A Danish writer draws 
a still darker picture of the tyranny e.xercised to- 
wards the married clergy, which, if he does not ex- 
aggerate, was severe indeed : alii membris trunca- 
bantur, alii occidebantur, alii de patria expelleban- 
tur, pauci sua retinuere. — Langebek, Script. Re- 
rum Danicarum, t, i., p. 380. The prohibition was 
repeated by Waldemar II. in 1222, so that there 
seems to have been much difficulty found.— Idem, 
p. 287 and p. 272. 

t Wilkins, Concilia, p. 387. Chronicon Saxon. 
Collier, p. 248, 28G, 294. Lyttleton, vol. iii., p. 
323. The third Lateran council, fifty years after- 
ward, speaks of the detestable custom of keeping 
concubine.s, long used by the English clergy. Cum 
in Anglia prava et dctestabili cnnsuetudine et longo 
tempore fuerit obtentum, ut clerici in domibus suis 
formcarias habeant, — Labbe, Concilia, t. x., p. 
1633. Eugenius IV. sent a legate to impose celi- 
bacy on the Irish clergy. — Lyttleton's Henry II., 
vol. ii., p. 42. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



279 



relaxed in their efforts; and all the coun- 
cils, general or provincial, of the twelfth 
century, utter denunciations against con- 
cubinary priests.* After that age we do 
not find them so frequently mentioned; 
and the abuse by degrees, though not 
suppressed, was reduced within limits at 
which tlie church might connive. 

Simony, or the corrupt purchase of 
c- spiritual benefices, was the second 

" characteristic reproach 01 the cler- 
gy in the eleventh century. The meas- 
ures taken to repress it deserve particu- 
lar consideration, as they produced effects 
of the liighest importance in the history 
Episcopal of the middle ages. According 
elections, jq jj^g primitive custom of the 
church, an episcopal vacancy was filled 
up by election of the clergy and people 
belonging to the city or diocess. The 
subject of their choice was, after the 
establishment of the federate or provin- 
cial system, to be approved or rejected 
by the metropolitan and his suffragans ; 
and, if approved, he was consecrated by 
them.f It is probable that, in almost 
every case, the clergy took a leading 
part in the selection of their bishops ; 
but the consent of the laity was abso- 
lutely necessary to render it vahd.J 
They were, however, by degrees ex- 
cluded from any real participation, first 
in the Greek, and finally in the western 
church. But this was not effected till 
pretty late times ; the people fully pre- 
served their elective rights at Milan in 
the eleventh century; and traces of their 
concurrence maybe found both in France 
and Germany in the next age.^ 

* Quiflam sacerdotes Latini, says Innocent III., 
in domibus suis habent concubinas, et nonnulli ali- 
quas sibi non metuunt desponsare. — Opera Inno- 
cent in., p. 558. See also p. 300 and 407. The 
latter cannot be supposed a very common case, 
after so many prohibitions; the more usual prac- 
tice was to keep a female in their houses, under 
some pretence of relationship or servitude, as is 
still said to be usual in Catholic countries. — Du 
Can^e, v. Focaria. A writer of respectable au- 
thority asserts, that the clergy frequently obtained 
a bishop's license to cohabit with a mate. — Har- 
mer's [Wharton's] Observations on Burnet, p. 11. 
I find a passage in Nicholas de Clemangis, about 
1400, quoted in Lewis's life of Pecock, p. 30. Pie- 
risque m diocesibus, rectores parochiarum ex certo 
et conducto cum his proelatis pretio, passim et pub- 
hcS concubinas tenent. This, however, does not 
amount to a direct license. 

The marriages of English clergy are noticed and 
condemned in some provincial constitutions of 
1237. — Matt. Paris, p. 381. And there is, even so 
late as 1404, a mandate by the Bishop of Exeter 
against married priests. — Wilkins, Concilia, t. iii., 
p. 277. 

+ ATarca, De Concordantia, &c., 1. vi., c. 2. 

i Father Paul on Benefices, c. 7. 

i) De Marca, ubi supra. Schmidt, t. iv., p. 173. 



[ It does not appear that the early Chris- 
tian emperors interposed with the free- 
dom of choice any farther than to make 
their own confirmation necessary in the 
great patriarchal sees, such as Rome and 
Constantinople, which were frequently 
the objects of violent competition, and to 
decide in controverted elections.* The 
Gothic and Lombard kings of Italy fol- 
lowed the same line of conduct. f But in 
the French monarchy a more extensive 
authority was assumed by the sovereign. 
Though the practice was subject to some 
variation, it may be said generally that 
the Merovingian kings, the line of Char- 
lemagne, and the German emperors of 
the house of Saxony, conferred bishoprics 
either by direct nomination, or, as was 
more regular, by recommendatory letters 
to the electors. I In England also, before 
the conquest, bishops were appointed in 
the wittenagemot ; and even in the reign 
of William, it is said that Lanfranc was 
raised to the see of Canterbury by con- 
sent of parliament.^ But, independently 
of this prerogative, which length of time 
and the tacit sanction of the people have 
rendered unquestionably legitimate, the 
sovereign had other means of controlhng 
the election of a bishop. Those estates 
and honours which compose the tempo- 
ralities of the see, and without which tlie 
naked spiritual privileges would not have 
tempted an avaricious generation, had 



The form of election of a bishop of Puy, in 1053, 
runs thus : clerus, populus, et militia elegmius. — 
Vaisselte, Hist, de Languedoc, t. ii. Appendix, p. 
220. Even Gratian seems to admit in one place 
that the laity had a sort of share, though no deci- 
sive voice, in filling up an episcopal vacancy. 
Electio clericorum est, petitio plebis. — Decret.,1. i., 
distinctio C3. And other subsequent passages cou- 
lirrn this. 

* Gibbon, c. 20. St. Marc, Abrege Chronolo- 
gique, t. i., p. 7. 

t Fra Paolo on Benefices, c. ix. Giannone, 1. 
iii , c. C ; 1. IV., c. 12. St. Marc, t. i., p. 37. 

X Schmidt, t. i., p. 386 ; t. ii., p. 245, 487. This 
interference of the kings was perhaps not quite 
conformable to their own laws, which only reserved 
to them the confirmation. Episcopo decedente, 
says a constitution of Clotaire II. in 615, in loco 
ipsius, qui a metropolitaiioordinari debet, a provin- 
cialibus, a clero et populo eligatur : et si persona 
condigua fuerit, per ordinationem principis ordine- 
tur.— Baluz. Capitul., t. i., p. 21. Charlemagne is 
said to have adhered to this limitation, leaving 
elections free, and only approving the person, and 
conferring investiture on him. — F. Paul, on Bene- 
fices, c. XV. But a more direct influence was re- 
stored afterward. Ivon, bishop of Chartres, about 
the year 1100, thus concisely expresses the several 
parties concurring in the creation of a bishop : eli- 
gente clero, suliragante populo, doao regis, per 
manum metropolitani, approbante Romano ponti- 
fice. — Du Chesne, Script. Rerum Gallicarum, t. iv., 
p. 174. 

^ Lyttleton's Hist, of Henry II., vol. iv., p. 144. 



280 



EUROPE DURING THE MIDDLE AGES. 



[Chap. V7I. 



chiefly been granted by former kings, 
and were assimilated to lands held on a 
beneficiary tenure. As they seemed to 
partake of the nature of fiefs, they re- 
quired similar formalities ; in- 
investitures. ^estiture by the lord, and an 
oath of fealty by the tenant. Charle- 
magne is said to have introduced this 
practice ; and, by way of visible symbol, 
as usual in feudal institutions, to have 
put tiie ring and crosier into the hands of 
the newly-consecrated bishop. And this 
continued for more than two centuries 
afterward without exciting any scandal 
or resistance.* 

The church has undoubtedly surren- 
dered part of her independence in return 
for ample endowments and temporal 
power ; nor could any claim be more rea- 
sonable than that of feudal superiors to 
grant the investiture of dependant fiefs. 
But the fairest right may be sullied by 
abuse ; and the sovereigns, the lay-pa- 
trons, the prelates of the tenth and elev- 
enth centuries, made their powers of 
nomination and investirure subservient 
to the grossest rapacity. j According to 
the ancient canons, a benifice was avoid- 
ed by any simoniacal payment or stipu- 
lation. If these were to be enforced, the 
church must almost be cleared of its min- 
isters. Either through bribery in places 
Avhere elections still j-.revailed, or through 
corrupt agreements with princes, or, at 
least, customary presents to their wives 
and ministers, a large proportion of the 
bishops had no vahd tenm-e in their sees. 
The case was pcrliaps worse with inferior 
clerks ; in the church of Milan, which was 
notorious for this corruption, not a single 
ecclesiastic could stand the test, the arch- 
bishop exacting a price for the collation 
of every 'benefice. J 

The bishops of Rome, like those of in- 
. ferior sees, were regularly elected 
coiffirm- by the citizens, laymen as well as 
aiioii of ecclesiastics. But their conse- 
'"'P^^' cration was deferred until the 
popular choice had received the sov- 
ereign's sanction. The Romans regu- 
larly despatched letters to Constanti- 
nople or to the exarchs of Ravenna, 

* De Marca, p. 416. Giannone, 1. vi.„c. 7. 

•f Boniface, marquis of Tuscany, father of the 
Countess Matilda, and by far the greatest prince in 
Italy, was flogged before the altar by an abbot for 
selling benefices. — Muratori, ad ann. 1046. The 
offence was much more common than the punish- 
ment, but the two combined lurnish a good speci- 
men of the eleventh century. 

t St. Marc, t. iii., p. 65, 188, 219, 206, 230, 568. 
Muratori, A. D. 958, 1057, &c. Fleury, Hist. Ec- 
cl6s., t. xiii., p. 73. The sum, however, appears to 
have been very small: rather like a fee than a 
bribe. 



praying that their election of a pope 
might be confirmed. Exceptions, if any, 
are infrequent while Rome was subject 
to the eastern empire.* This, among 
other imperial prerogatives, Charlemagne 
might consider as his own. He posses- 
sed the city, especially after his corona- 
tion as emperor, in full sovereignty ; and, 
even before that event, had investigated, 
as supreme chief, some accusations pre- 
ferred against the Pope Leo III. No va- 
cancy of the papacy took place after 
Charlemagne became emperor; and it 
must be confessed, that, in the first which 
happened under Louis the Debonair, Ste- 
phen IV. was consecrated in haste witliout 
that prince's approbation.! But Gregory 
IV., his successor, waited till his elec- 
tion had been confirmed ; and, upon 
the whole, the Carlovingian emperors, 
though less uniformly than their pred- 
ecessors, retained that mark of sov- 
ereignty.J But during the disorderly 
state of Italy which followed the last 
reigns of Charlemagne's posterity, while 
the sovereignty and even the name of an 
emperor were in abeyance, the supreme 
dignity of Christendom was conferred 
only by the factious rabble of its capital. 
Otho the Great, in receiving the imperial 
crown, took upon him the prerogatives 
of Charlemagne. There is even extant a 
decree of Leo VIII., which grants to him 
and his successors the right of naming 
future popes. But the authenticity of 
this instrument is denied by the Italians. i^ 
It does not appear that the Saxon em- 
perors went to such a length as nomina- 
tion, except in one instance (that of 
Gregory V. in 996) ; but they sometimes, 
not uniformly, confirmed the election of 
a pope, according to ancient custom. 
An explicit right of nomination was how- 
ever conceded to the Emperor Henry III. 
in 1047, as the only means of rescuing 
the Roman church from the disgrace and 
depravity into which it had fallen. Henry 



* Le Blanc, Dissertation sur I'Autorite des Em- 
pereurs. This is subjoined to his Traite des 
Monnoyes; but not in all copies, which makes 
those that want it less valuable.— St. Marc and 
Muratori, passim. 

t Muratori, A. D. 817. St. Marc. 

I Le Blanc. Schmidt, t. li., p. 186. St. Marc, t 
i.. p. 337, 393. <kc. 

ij St. Marc had defended the authenticity of this 
instrument in a separate dissertation, t. iv., p. 1167, 
though admitting some interpolations. Pagi in 
Baronium, t. iv., p. 8, seemed to me to have urged 
some weighty objections; and Muratori, Aiiriali 
d'ltalia, A. D. 962, speaks of it as a gross impos- 
ture, in which he probably goes too far. It obtain- 
ed credit rather early, and is admitted into the de- 
cretum of Gratian, notwithstanding its obvious 
tendency, p. 211, edit. 1591. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



281 



appointed two or three very good popes ; 
acting in this against tlie warnings of a 
selfish pohcy, as fatal experience soon 
proved to his family.* 

This high prerogative was perhaps not 
designed to extend beyond Henry him- 
self. But, even if it had been transmis- 
sible to his successors, the infancy of his 
son Henry IV., and the factions of that 
minority, precluded the possibility of its 
Decree of exercise. Mcolas H., in 1059, 
Nicolas published a decree, which resto- 
"• red the right of election to the 

Romans, but with a remarkable varia- 
tion from the original form. The car- 
dinal bishops (seven in number, holding 
sees in the neighbourhood of Rome, and 
consequently suffragans of the pope as 
patriarch or metropolitan) were to choose 
the supreme pontiff, with the concur- 
rence first of the cardinal priests and 
deacons (or ministers of the parish 
churches of Rome), and afterward of 
the laity. Thus elected, the new pope, 
was to be presented for confirmation to 
Henry, " now king and hereafter to be- 
come emperor," and to such of his suc- 
cessors as should personally obtain that 
privilege.! This decree is the founda- 
tion of that celebrated mode of election 
in a conclave of cardinals, which has ever 
since determined the headship of the 
church. It was intended not only to ex- 
clude the citizens, who had indeed justly 
forfeited their primitive right, but as far 
as possible to prepare the way for an ab- 
solute emancipation of the papacy from 
the imperial control ; reserving only a 
precarious and personal concession to 
the emperors, instead of their ancient 
legal prerogative of confirmation. 

The real author of this decree, and 
Gregory of all other vigorous measures 
VII. 1073. adopted by the popes of that 
age, whether for the assertion of their 
independence, or the restoration of dis- 
cipline, was Hildebrand, archdeacon of 
the church of Rome, by far the most 
conspicuous person of the eleventh cen- 
tury. Acquiring by his extraordinary 
qualities an unbounded ascendency over 
the Italian clergy, they regarded him as 
their chosen leader, and the hope of their 
common cause. He had been empower- 
ed singly to nominate a pope, on the part 
of the Romans, f after the death of Leo 
IX., and compelled Henry III. to acqui- 

* St. Marc. Muratori. Schmidt. Struvius. 

t St. Marc, t. iii., p. 276. The first canon of the 
third Lateran council makes the consent of two 
thirds of the college necessary for a pope's elec- 
tion.— Labb6, Concilia, t. x., p. 1508. , 

t St. Marc, p. 97. 



esce in his choice of Victor II. No 
man could proceed more fearlessly to- 
wards his object than Hildebrand, nor 
with less attention to conscientious im- 
pediments. Though the decree of Nic- 
olas 11., his own work, had expressly 
reserved the right of confirmation of the 
young King of Germany, yet, on the death 
of that pope, Hildebrand procured the 
election and consecration of Alexander 
II. without waiting for any authority.* 
During this pontificate he was considered 
as something greater than the pope, who 
acted entirely by his counsels. On Alex- 
ander's decease, Hildebrand, long since 
the real head of the church, was raised 
with enthusiasm to its chief dignity, and 
assumed the name of Gregory VII. 

Notwithstanding the late precedent at 
the election of Alexander II., it u,., jin„r. 
appears that Gregory did Hot yet ences wnii 
consider his plans sufficiently ^^'^"^^' '^'• 
mature to throw off the yoke altogether, 
but declined to receive consecration un- 
til he had obtained the consent of the 
King of Germany.! This moderation 
was not of long continuance. The situa- 
tion of Germany speedily afforded him 
an opportunity of displaying his ambitious 
views. Henry IV., through a very bad 
education, was arbitrary and dissolute ; 
the Saxons were engaged in a desperate 
rebellion ; and secret disaffection had 
spread among the princes to an extent 
of which the pope was much better aware 
than the king. J He began by excommu- 
nicating some of Henry's ministers on 
pretence of simony, and made it a ground 
,of remonstrance that they were not in- 
stantly dismissed. His next step was to 
publish a decree, or rather to renew one 
of Alexander H., against lay investitures.^ 
The abolition of these was a favourite ob- 
ject of Gregory, and formed an essential 
part of his general scheme for emancipa- 
ting the spiritual, and subjugating the 
temporal power. The ring and crosier, 
it was asserted by the papal advocates, 
were the emblems of that power w hich 
no monarch could bestow; but even if a 
less offensive symbol were adopted in 
investitures, the dignity of the church 
was lowered, and her purity contamina- 
ted, when her highest ministers were 
compelled to solicit the patronage or 
the approbation of laymen. Though the 



* St. Marc, p. 306. 

t Ibid., p. 552. He acted however as pope, cor- 
responding in that character with bishops of all 
countries, from the day of his election, p. 554. 

X Schmidt.^ St. Marc. These two are my prin- 
cipal authorities for the contest between the church 
and the empire. 

^ St. Marc, t. iii., p. 670. 



282 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIL 



estates of bishops might strictly be of 
temporal right, yet, as they had been in- 
separably annexed to their spiritual of- 
fice, it became just that what was first in 
dignity and importance should carry with 
it those accessory parts. And this was 
more necessary than in former times, on 
account of the notorious traffic which 
sovereigns made of their usurped nomi- 
nation to benefices, so that scarcely any 
prelate sat by their favour whose pos- 
session was not invalidated by simony. 

The contest about investitures, though 
begun by Gregory VIL, did not occupy a 
very prominent place during his pontifi- 
cate ; its interest being suspended by 
other more (ixtraordinary and important 
dissensions between the church and em- 
pire. The pope, after tampering some 
time with the disaftected party in Ger- 
many, summoned Henry to appear at 
Rome, and vindicate himself from the 
charges alleged by his subjects. Such 
an outrage naturally exasperated a young 
and passionate monarch. Assembling a 
number of bishops and other vassals at 
Worms, he procured a sentence that 
Gregory sho'jJd no longer be obeyed as 
lawful pope. Bui, the time was past for 
ihose arbitrary encroacnments, or at least 
iiigh prerogatives ol former emperors. 
The relations of dependence between 
ohurch and state were now about to be 
reversed. Gregory had no sooner re- 
ceived accounts of the proceedings at 
Worms, than he summoned a council in 
the Lateran palace, and, by a solemn sen- 
tence, not only excommunicated Henry, 
but deprived him of the kingdoms of Ger- 
many and Italy, releasing his subjects 
from their allegiance, and forbidding them 
to obey him as sovereign. Thus Grego- 
ry VII. obtained the glory of leaving all 
his predecessors behind, and astonishing 
mankind by an act of audacity and ambi- 
tion which the most emulous of his suc- 
cessors could hardly surpass.* 



* The sentence of Gregory VII. against the Em- 
peror Henry was directed, we should always re- 
member, tc) persons already well diirposed to reject 
his authority. Men are glad to be told that it is 
their duty to resist a sovereign agaii.bt whom they 
Rre in reh^Uion, and will not be veij' scrupulous in 
examining conclusions which fall in with their in- 
clinations and interests. Allegiance- was in those 
turbulent ages easily thrown off, an^* the right of 
resi.stance was in continual exercise. To the Ger- 
rnans of the eleventh century, a prince unfit for 
Christian communion would easily ?ppear unfit to 
reign over them ; and though Henry had not given 
much real provocation to the pope, his vices and 
tyranny might seem to challenge any spiritual cen- 
sure, or temporal chastisement. A nearly contem- 
porary writer combines the two justifications of 
the rebellious party. JSemo Romaiiorum pontifi- 



The first impulses of Henry's mind on 
hearing this denunciation were indigna- 
tion and resentment. But, like other in- 
experienced and misguided sovereigns, 
he had formed an erroneous calculation 
of his own resources. A conspiracy long 
prepared, of which the dukes of Swabia 
and Carinthia were the chiefs, began to 
manifest itself; some were alienated by 
his vices, and others jealous of his fami- 
ly ; the rebellious Saxons took courage ; 
the bishops, intimidated by excommuni- 
cations, withdrew from his side ; and he 
suddenly found himself almost insulated 
in the midst of his dominions. In this 
desertion he had recourse, through panic, 
to a miserable expedient. He crossed 
the Alps with the avowed determination 
of submitting, and seeking absolution from 
the pope. Gregory was at Canossa, a 
fortress near Reggio, belonging to his 
faithful adherent, the Countess Matilda. 
[A. D. 1077.] It was in a winter of un- 
usual severity. The emperor was ad- 
mitted, without his guards, into an outer 
court of the castle, and three successive 
days remained from morning till evening, 
in a woollen shirt and with naked feet, 
while Gregory, shut up with the countess, 
refused to admit him to his presence. 
On the fourth day he obtained absolution ; 
but only upon condition of appearing on 
a certain day to learn the pope's decis- 
ion, whether or no he should be restored 
to his kingdom, until which time he 
promised not to assume the ensigns of 
royalty. 

This base humiliation, instead of con- 
ciliating Henry's adversaries, forfeited the 
attachment of his friends. In his contest 
with the pope, he had found a zealous 
support in the principal Lombard cities, 
among whom the married and simoniacal 
clergy had great influence.* Indignant 

cem reges a regno deponere posse denegabit, qui- 
cunque decreta sanctissimi Papse Gregorii non 
proscribenda judicabit. Ipse enim vir apostolicus 
.... Prajterea, libcri homines Henricum eo pacto 
sibi praeposuerunt in regem, ut electores suos jusl& 
judicare et regali providentia gubemare satageret, 
quod pactum ille postea pra?varicari et contem- 
nere non cessavit, &c. Ergo, et absque sedis 
apostolicae judicio principes eum pro rege merito 
refutare possent, cum pactum adimplere contem- 
serit, quod iis pro electione sua promiserat ; quo 
non adirnpleto, nee rex esse poterat. — Vita Greg 
VII. in Muratori, Script. Rer. Ital., t. lii., p. 342. 

Upon the other hand, the friends and supporters 
of Henry, though ecclesiastics, protested against 
this novel stretch of prerogative in the Roman see. 
Several proofs of this are adduced by Schmidt, t. 
iii., p. 315. 

* There had been a kind of civil war at Milan 
for about twenty years before this time, excited by 
the intemperate zeal of some partisans who en- 
deavoured to execute the papal decrees against ir 



Chap. VII.] 



ECCLESIASTICAL POWER. 



283 



at his submission to Gregory, whom they 
affected to consider as a usurper of the 
papal chair, they now closed their gates 
against the emperor, and spoke openly 
of deposing him. In this singular posi- 
tion between opposite dangers, Henry 
retrod his late steps, and broke off his 
treaty with the pope ; preferring, if he 
must fall, to fall as the defender rather 
than the betrayer of his imperial rights. 
The rebellious princes of Germany chose 
another king, Rodolph, duke of Swabia, 
on whom Gregory, after some delay, be- 
stowed the crown, with a Latin verse, 
importing that it was given by virtue of 
the origmal commission of St. Peter.* 
But the success of this pontiff in his 
immediate designs was not answerable 
to his intrepidity. Henry both subdued 
the German rebellion, and carried on the 
war with so much vigour, or rather so 
little resistance, in Italy, that he was 
crowned in Rome by. the antipope Gui- 
bert, whom he had raised in a council of 
his partisans to the government of the 
church instead of Gregory. The latter 
found an asylum under the protection of 
Roger Guiscard at Salerno, where he 
Dispute di6<i ^^^ exile. His mantle, how- 
aboutin- ever, descended upon his suc- 
vestitures. cessors, especially Urban II. and 
Paschal II., who strenuously persevered 
in the great contest for ecclesiastical in- 
dependence ; the former with a spirit and 
policy worthy of Gregory VII., the latter 
with steady but disinterested prejudice.! 

regular clerks by force. The history of these feuds 
has been written by two contemporaries, Arnulf 
end Landulf, published in the fourth volume of 
Muratori's Scriptores Rerum Italicarum ; suffi- 
cient extracts from which will be found in St. 
Marc, t. lii., p. 230, &c., and in Muratori's Annals. 
The Milanese clergy set up a pretence to retain 
wives, under the authority of their great archbishop, 
St. Ambrose, who, it seems, has spoken with more 
indulgence of this practice than most of the fa- 
thers. Both Arnulf and Landulf favour the mar- 
ried clerks ; and were perhaps themselves of that 
description. — Muratori. 

* Petra dedit Petro, Petrus diadema Rodolpho. 

+ Paschal II. was so conscientious in his abhor- 
rence of investitures, that he actually signed an 
agreement with Henry V., in 1110, whereby the 
prelates were to resign all the lands and other 
possessions which they held in lief of the em- 
peror, on condition of the latter renouncing the 
right of investiture, which indeed, in such circum- 
stances, would fall of itself. This extraordinary 
concession, as may be imagined, was not very sat- 
isfactory to the cardinals and bi.shops about Pas- 
chal's court, more worldly-minded than himself, 
nor to those of the emperor's party, whose joint 
clamours soon put a stop to the treaty. — St. Marc, 
t. iv., p. 976. A letter of Paschal to Anselm 
(Schmidt, t. iii., p. 304), seems to imply that he 
thought it better for the church to be without riches, 
than to enjoy them on condition of doing homage 
to laymen. 



They raised up enemies against Henry 
IV. out of the bosom of his family, insti- 
gating the ambition of two of his sons 
successively, Conrad and Henry, to min- 
gle in the revolts of Germany. But 
Rome, under whose auspices the latter 
had not scrupled to engage in an almost 
parricidal rebellion, was soon disappoint- 
ed by his unexpected tenaciousness cf 
that obnoxious prerogative which had 
occasioned so much of his father's mis- 
ery. He steadily refused to part with 
the right of investiture ; and the empire 
was still committed in open hostility with 
the church for fifteen years of his reign. 
But Henry V. being stronger in the sup- 
port of his German vassals than his father 
had been, none of the popes with whom 
he was engaged had the boldness to re- 
peat the measures of Gregory VII. [A. 
D. 1122.] At length, each party ^^ 
grown weary of this ruinous mjsedby 
contention, a treaty was agreed concordat 
upon between the emperor and "fCaU-xtus 
Calixtus II., which put an end by com- 
promise to the question of ecclesiastical 
investitures. By this compact, the em- 
peror resigned for ever all pretence to 
invest bishops by the ring and crosier, 
and recognised the liberty of elections. 
But, in return, it was agreed that elec- 
tions should be made in his presence or 
that of his officers; and that the new 
bishop should receive his temporalities 
from the emperor by the sceptre.* 

Both parties in the concordat at Worms 
receded from so much of their preten- 
sions, that we might almost hesitate to 
determine which is to be considered as 
victorious. On the one hand, in resto- 
ring the freedom of episcopal elections, 
the emperors lost a prerogative of veiy 
long standing, and almost necessary to 
the maintenance of authority over not 
the least turbulent part of their subjects. 
And though the form of investiture by 
the ring and crosier seemed in itself of 
no importance, yet it had been in effect 
a collateral security against the election 
of obnoxious persons. For the empe- 
rors, detaining this necessary part of the 
pontificals until they should confer inves- 
titure, prevented a hasty consecration of 
the new bishop, after which, the vacancy 
being legally filled, it would not be decent 
for them to withhold the temporalities 
But then, on the other hand, they pre- 
served by the concordat their feudal sov- 
ereignty over the estates of the church, 
in defiance of the language which had 
recently been held by its rulers. Greg- 

* St. Marc, t. iv., p. 1093. Schmidt, t. iii., p. 
178. The latter quotes the Latin words. 



284 



EUROPE DURING THE MIDDLE AGES 



[Chap. Vir. 



ory VII. had positively declared, in the 
Lateral! council of 1080, that a bishop or 
abbot receiving investiture from a lay- 
man should not be reckoned as a prelate.* 
The same doctrine had been maintained 
by all his successors, v^^ithout any limita- 
tion of their censures to the formality of 
the ring and crosier. But Calixtus II. 
himself had gone much farther, and ab- 
solutely prohibited the compeUing eccle- 
siastics to render any service to laymen 
on account of their benefices.! It is evi- 
dent, that such a general immunity from 
feudal obligations for an order who pos- 
sessed nearly half the lands in Europe, 
struck at the root of those institutions 
by which the fabric of society was prin- 
cipally held together. This complete in- 
dependence had been the aim of Grego- 
ry's disciples ; and, by yielding to the 
continuance of lay investitures in any 
shape, Calixtus may, in this point of 
view, appear to have relinquished the 
principal object of contention. But as 
there have been battles, in which though 
immediate success may seem pretty 
equally balanced, yet we learn from 
subsequent effects to whom the intrinsic 
advantages of victory belonged, so it is 
manifest from the events that followed 
the settlement of this great controversy 
about investitures, that the see of Rome 
had conquered. 

The emperors were not the only sov- 
ereigns whose practice of investiture ex- 
cited the hostility of Rome, although they 
sustained the principal brunt of the war. 
A similar contest broke out under the 
pontificate of Paschal II. with Henry I. 
of England ; for the circumstances of 
which, as they contain nothing peculiar, 
I refer to our own historians. It is re- 
markable, that it ended in a compromise 
not unlike that adjusted at Worms ; the 
king renouncing all sort of investitures, 
while the pope consented that the bishop 
should do homage for his temporalities. 
This was exactly the custom of France, 
where investiture by the ring and cro- 
sier is said not to have prevailed ;| and 
it answered the main end of sovereigns 
by keeping up the feudal dependance of 
ecclesiastical estates. But the kings of 

♦ St. Marc, t. iv., p. 774. A bishop of Placentia 
asserts that prelates dishonoured their order by 
putting their hands, which held the body and blood 
of Christ, between those of impure layrnen, p. 956. 
The same expressions are used by others, and are 
levelled at the form of feudal homage, which, ac- 
cording to the principles of that age, ought to have 
been as obnoxious as investiture. 

I Id., p. lOGl, 1067. 

X Hi.etoire du, Droit public ecclesiastique Fran- 
cois, p. 261. I do not fully rely on this authority. 



Castile were more fortunate than the 
rest ; discreetly yielding to the pride of 
Rome, they obtained what was essential 
to their own authority, and have always 
possessed, by the concession of Urban 
II., an absolute privilege of nomination 
to bishoprics in their dominions.* An 
early evidence of that indifference of the 
popes towards the real independence of 
national churches, to which subsequent 
ages were to lend abundant confirmation. 
When the emperors had surrendered 
their pretensions to interfere in introJucUon 
episcopal elections, the primi- of capuuiar 
five mode of collecting the suf- <=''='^"""s- 
frages of clergy and laity in conjunction, 
or at least of the clergy with the laity's 
assent and ratification, ought naturally to 
have revived. But in the twelfth centu- 
ry, neither the people, nor even the gen- 
eral body of the diocesan clergy, were 
considered as worthy to exercise this 
function. It soon devolved altogether 
upon the chapters of cathedral churches. f 
The original of these may be traced very 
high. In the earliest ages, we find a 
college of presbytery consisting of the 
priests and deacons, assistants as a coun- 
cil of advice, or even a kind of parliament 
to their bishops. Parochial divisions, 
and fixed ministers attached to them, 
were not established till a later period. 
But the canons, or cathedral clergy, ac- 
quired afterward a more distinct charac- 
ter. They were subjected by degrees to 
certain strict observances, little difljering, 
in fact, from those imposed on monastic 
orders. They lived at a common table, 
they slept in a common dormitory, their 
dress and diet were regulated by peculiar 
laws. But they were distinguished from 
monks by the right of possessing individ- 
ual property, which was afterward ex- 
tended to the enjoyment of separate preb- 



* F. Paul on Benefices, c. 24. Zurita, Anales 
de Aragon, t. iv., p. 305. Fleiiry says that the 
kings of Spain nominate to bishoprics by virtue of 
a particular indulgence, renewed by the pope for 
the life of each prince. — Institutions au Droit, t. i., 
p. 106. 

t Fra Paolo (Treatise on Benefices, c. 24) says, 
that between 1122 and 1145, it became a rule al- 
most everywhere established, that bishops should 
be chosen by the chapter. Schmidt, however, 
brings a few instances where the consent of the 
nobility and other laics is expressed, though per- 
haps little else than a matter of form. Innocent 
II. seems to have been the first who declared, that 
whoever had the majority of the chapter in his fa 
vour should be deemed duly elected ; and this was 
confirmed by Otho IV. m the capitulation upon his 
accession. — Hist, des Allemands, t. iv., p. 175. 
Fleury thinks that chapters had not an exclusive 
election till the end of the twelfth century. The 
second Lateran council, in 1139, represses their at- 
tempts to engross it. — Institutions au Droit Ec- 
cles., t. i., p. 100. 



Chap. VII. 



ECCLESIASTICAL POWER. 



285 



ends or benefices. These strict regula- 
tions, chiefly imposed by Louis the De- 
bonair, went into disuse through the re- 
laxation of discipline ; nor were they ever 
effectually restored. Meantime 4he chap- 
ters became extremely rich ; and as they 
monopolized the privilege of electing 
bishops, it became an object of ambition 
with noble families to obtain canonries 
for their younger children, as the surest 
road to ecclesiastical honours and opu- 
lence. Contrary, therefore, to the gen- 
eral poUcy of the church, persons of in- 
ferior birth have been rigidly excluded 
from these foundations.* 

The object of Gregory VII., in attempt- 
General con- i"g to redress those more fla- 
diict of Gre- grant abuses which for two cen- 
gory vii. luries had deformed the face of 
the Latin church, is not incapable, per- 
haps, of vindication, though no sufficient 
apology can be offered for the means he 
employed. But the disinterested love of 
reformation, to which candour might as- 
cribe the contention against investitures, 
is belied by the general tenour of his con- 
duct, exhibiting an arrogance without 
parallel, and an ambition that grasped at 
universal and unlimited monarchy. He 
may be called the common enemy of all 
sovereigns, whose dignity as well as in- 
dependence mortified his infatuated pride. 
Thus we find him menacing Philip I. of 
France, who had connived at the pillage 
of some Italian merchants and pilgrims, 
not only with an interdict, but a sentence 
of deposition.! Thus too he asserts, as 
a known historical fact, that the kingdom 
of Spain had formerly belonged, by spe- 
cial right, to St. Peter ; and by virtue of 
this imprescriptible claim, he grants to a 
certain Count de Rouci all territories 
which he should reconquer from the 
Moors, to be held in fief from the Holy 
See by a stipulated rent.| A similar pre- 



* Schmidt, t. ii., p. 224, 473 ; t. iii., p. 281. En- 
cyclopedie. Art. Chanoine. F. Paul on Benefices, 
C. 16. Fleury, 8°>= Discours sur I'Hist. Eccles. 

t St. Marc, t. iii., p. C28. Fleury, Hist. Eccles., 
t. xiii., p. 281, 284. 

X The language he employs is worth quoting, as 
a specimen of his style : Non latere vos credimus, 
regnum Hispanioe ab antique juris sancti Petri 
fuisse, et adhuc licet diu a pagaiiis sit occupatum, 
lege tamen justitise non evacuata, nulli mortalium, 
sed soli apostolicse sedi ex aequo pertinere. Quod 
enim auctore Deo semel in proprietates ecclesia- 
rum justfe pervenerit, manente Eo, ab usu quidem, 
sed ab earum jure, occasione transeuntis temporis, 
sine legitima concessione divelh non poterit. Ita- 
que Comes Evalus de Roceio, cujus famam apud 
vos haud obscuram esse pntamus, terram illam ad 
honorem Sti. Petri ingredi, et a paganorum manibus 
eripere cupiens, hanc concessionem ab ajiostolica 
sede obtinuit, ut partem illam, unde paganos suo 
Btudio et adjunoto sibi aliorum auxilio expellere 



tension he makes to the kingdom of Hun- 
gary, and bitterly reproaches its sover- 
eign Solomon, who had done homage to 
the emperor, in derogation of St. Peter, 
his legitimate lord.* It was convenient 
to treat this apostle as a great feudal su- 
zerain, and the legal principles of that age 
were dexterously applied to rivet more 
forcibly the fetters of superstition. f 

While temporal sovereigns were op- 
posing so inadequate a resistance to a 
system of usurpation contrary to all pre- 
cedent, and to the common principles of 
society, it was not to be expected that 
national churches should persevere in 
opposing pretensions for which several 
ages had paved the way. Gregory VII. 
completed the destruction of their lib- 
erties. The principles contained in the 
decretals of Isidore, hostile as they were 
to ecclesiastical independence, were set 
aside as insufficient to establish the ab- 
solute monarchy of Rome. By a con- 
stitution of Alexander II., during whose 
pontificate Hildebrand himself was deem- 
ed the eff'ectual pope, no bishop in the 
Catholic church was permitted to exer- 
cise his functions until he had received 
the confirmation of the Holy See :% a pro- 
vision of vast importance, through which, 
beyond perhaps any other means, Rome 
has sustained, and still sustains, her tem- 
poral influence, as well as her ecclesias- 
tical supremacy. The national churches, 
long abridged of their liberties by gradual 
encroachments, now foimd themselves 
subject to an undisguised and irresistible 
despotism. Instead of aff'ording protec- 
tion to bishops against their metropoli- 
tans, under an insidious pretence of which 
the popes of the ninth century had sub- 
verted the authority of the latter, it be- 
came the favourite policy of their succes- 
sors to harass all prelates with citations to 
Rome.^ Gregory obliged the metropoli- 
tans to attend in person for the pallium. || 
Bishops were summoned even from Eng- 
land and the northern kingdoms to receive 
the commands of the spiritual monarch. 
William the Conqueror having made a 



possit, sub conditione inter nos factae pactionis ex 
parte Sti. Petri possideret. — Labbe, Concilia, t. x., 
p. 10. Three instances occur in the Corps Diplo- 
matique of Dumont, wheie a duke of Dalmatia (t. 
i., p. 53), a count of Provence (p. 58), and a count 
of Barcelona (ibid.), put themselves under the feu- 
dal superiority and protection of Gregory VII. 
The motive was sufficiently obvious. 

* St. Marc, t. iii., p. 624, 074. Schmidt, p. 73. 

t The character and policy of Gregory VII, are 
well discvissed by Schmidt, t. iii., p. 307. 

t St. Marc, p. 400. '■ 

(J Schmidt, t. iii., p. 80, 322, 

II Id., t. iv., p. 170. 



386 



EUROPE DURING THE MIDDLE AGES. 



[CaiP. VII. 



difficulty about permitting his prelates to 
obey these citations, Gregory, though in 
general on good terms with that prince, 
and treating him with a deference which 
marks the etiect of a firm character in 
repressing the ebullitions of overbearing 
pride,* complains of this as a persecution 
unheard of among pagans. f The great 
quarrel between Archbishop Anselm and 
his two sovereigns, William Rufus and 
Henry I., was originally founded upon a 
similar refusal to permit his departure 
for Rome. 

This perpetual control exercised by 
Auihoritv ^^^ popes over ecclesiastical, and, 
of papal' in some degree, over temporal 
legates, affairs, was maintained by means 
of their legates, at once the ambassa- 
dors and the lieutenants of the Holy See. 
Previously to the latter part of the tenth 
age, these had been sent not frequently 
and upon special occasions. The lega- 
tine or vicarial commission had generally 
been intrusted to some eminent me- 
tropolitan of the nation within which it 
was to be exercised ; as the Archbishop 
(if Canterbury was perpetual legate in 
England. But the special commission- 
ers, or legates a latere, suspending the 
pope's ordinary vicars, took upon them- 
selves an unbounded authority over the 
national churches, holding councils, pro- 
mulgating canons, deposing bishops, and 
issuing interdicts at their discretion. 
They lived in splendour at the expense 
cf the bishops of the province. This 
was the more galling to the hierarchy, 
because simple deacons were often in- 
vested with this dignity, which set them 
above primates. As the sovereigns of 
France and England acquired more cour- 
age, they considerably abridged this pre- 
rogative of the Holy See, and resisted the 
entrance of any legates into their domin- 
ions without their consent. J 

From the time of Gregory VH., no pon- 
tiff thought of awaiting the confirmation 
of the emperor, as in earlier ages, before 
he was installed in the throne of St. Pe- 
ter. On the contrary, it was pretended 
that the emperor was himself to be con- 
firmed by the pope. This had indeed 
been broached by John VHI. two hundred 
years before Gregory.^ It was still a doc- 

* St. Marc, p. 628, 781. Schmidt, t. iii., p. 82. 

t Idem, t. iv., p. 7CS. Collier, p. 252. 

i De Marca, 1. vi., c. 28, 30, 31. Schmidt, t. ii., 
1). 498 ; t. iii., p. 312, 320. Hist, du Droit Public 
Eccl. Francois, p. 250. Fleury, 4"°= Discours sur 
I'Hist. Eccles., c. 10. 

<) Vide supra. It appears manifest, that the 
scheme of temporal soverei^ty was only suspend- 
ed by the disorders of the Roman see in the tenth 
entury. Peter Damian, a celebrated writer of 



trine not calculated for general reception ; 
but the popes availed themselves of every 
opportunity which the temporizing policy, 
the negligence, or bigotry of sovereigns 
threw int© their hands. Lothaire coming 
to receive the imperial crown at Rome, 
this circumstance was commemorated by 
a picture in the Lateran palace, in which, 
and in two Latin verses subscribed, ho 
was represented as doing homage to the 
pope.* When Frederick Barbarossa came 
upon the same occasion, he omitted to 
hold the stirrup of Adrian IV., . 
who, in his turn, refused to give 
him the usual kiss of peace ; nor was the 
contest ended but by the emperor's ac- 
quiescence, who was content to follow 
the precedents of his predecessors. The 
same Adrian, expostulating with Freder- 
ick upon some slight grievance, remind- 
ed him of the imperial crown which he 
had conferred, and declared his willing- 
ness to bestow, if possible, still greater 
benefits. But the phrase employed (ma- 
jora beneficia) suggested the idea of a 
fief; and the general insolence which 
pervaded Adrian's letter confirming this 
interpretation, a ferment arose among 
the German princes, in a congress of 
whom this letter was delivered. " From 
whom then," one of the legates was rash 
enough to say, " does the emperor hold 
his crown, except from the pope V which 
so irritated a prince of Wittelsbach, that 
he was with difficulty prevented from 
cleaving the priest's head with his sabre. f 
Adrian IV. was the only Englishman that 
ever sat in the papal chair. It might, 
perhaps, pass for a favour bestowed on 
his natural sovereign, when he granted 
to Henry II. the kingdom of Ireland ; 
yet the language of this donation, where- 
in he asserts all islands to be the exclu- 
sive property of St. Peter, should not 
have had a very pleasing sound to an in- 
sular monarch. 
I shall not wait to comment on the sup- 



the age of Hildebrand, and his friend, puts these 
words into the mouth of Jesus Christ, as addressed 
to Pope Victor il. Ego claves totius universalis 
ecclesiae meas tuis manibus tradidi, et super earn 
te mihi vicarium posui, quam proprii sanguinis ef- 
fusione redemi. Et si pauca sunt ista, eliam mo- 
narchias addidi: immo sublato rege de medio to- 
tius Romani imperii vacantis tibi jura permisi. — 
Schmidt, t. iii., p. 78. 
* Rex venit ante fores, jurans prius urbis ho- 
nores : 
Post homo fit papoe, sumit quo dante coronam. 
Muratori, Annali, A. D. 1157. 
There was a pretext for this artful Ime. Lo- 
thaire had received the estate of Matilda in fief 
from the pope, with a reversion to Henry the 
' Proud, his son-in-law. — Schmidt, p. 349. 
I t Muratori, ubi supra. Schmidt, t. iii., p. 393 



Chap.VIII 



ECCLESIASTICAL POWER. 



287 



, „, port given to Becket by Alex- 
Innocent in. ^,jder III. [A. D. 1194-1216], 
which must be familiar to the English 
reader, nor on his speedy canonization ; 
a reward which the church has always 
held out to its most active friends, and 
whicli may be compared to titles of no- 
Mlity granted by a temporal sovereign.* 
But the epoch when the spirit of papal 
usurpation was most strikingly displayed 
was the pontificate of Innocent III. in 
each of the three leading objects which 
Rome has pursued, independent sovereign- 
ty, supremacy over the Christian church, 
control over the princes of the earth, it 
was the fortune of this pontiff to conquer. 
He realized, as we have seen in another 
place, that fond hope of so many of his 
predecessors, a dominion over Rome and 
the central parts of Italy. During his 
pontificate, Constantinople was taken by 
the Latins ; and, however he might seem 
to regret a diversion of the crusaders, 
which impeded the recovery of the Holy 
Land, he exulted in the obedience of the 
new patriarch, and the reunion of the 
Greek church. Never, perhaps, either 
before or since, was the great eastern 
schism in so fair a way of being healed; 
even the kings of Bulgaria and of Arme- 
nia acknowledged the supremacy of In- 
nocent, and permitted his interference 
with their ecclesiastical institutions. 

The maxims of Gregory VII. were now 
Hisextraor- matured by more than a hun- 
dinary pre- dred years, and the right of 
tensions. trampling upon the necks of 
kings had been received, at least among 
churchmen, as an inherent attribute of 
the papacy. " As the sun and the moon 
are placed in the firmament" (such is the 
language of Innocent), " the gi-eater as the 
light of the day, and the lesser of the 
night ; thus are there two powers in the 
church ; the pontifical, which, as having 
the charge of souls, is the greater; and 
the royal, which is the less, and to Avhich 
the bodies of men only are intrusted."! 
Intoxicated with these conceptions (if 
we may apply such a word to successful 
ambition), he thought no quarrel of princes 
beyond the sphere of his jurisdiction. 
*' Though I cannot judge of the right to a 

* The first instance of a solemn papal canoniza- 
tion is that of St. Udalric by John XV'L, in 993. 
However, the metropolitans continued to meddle 
with this sort of apotheosis till the pontificate of 
Alexander III., who reserved it, as a choice prerog- 
ative, to the Holy See. — Art de verifier les Dates, 
t. i., p. 247 and 290. 

t Vita Innocentii Tertii in Muraton, Scriptores 
Rerum Ital., t. iii., pars i., p. 488. This hfe is writ- 
ten by a contemporary. — St. Marc, t. v., p. 325. 
Schmidt, t.iv., p. 227. 



fief," said Innocent to the kings of P'rance 
and England, " yet it is my province to 
ju^e wliere sin is committed, and my 
di^ to prevent all public scandals." Phil- 
ip Augustus, who had at that time the 
worse in his war with Richard, acquies- 
ced in this sophism ; the latter was more 
refractory, till the papal legate began 
to menace him with the rigour of the 
church.* But the King of England, as 
well as his adversary, condescended to 
obtain temporary ends by an impolitic 
submission to Rome. We have a letter 
from Innocent to the King of Navarre, 
directing him, on pain of spiritual censure, 
to restore some castles which he detain- 
ed from Richard.f And the latter appears 
to have entertained hopes of recovering 
his ransom paid to the emperor and Duke 
of Austria, through the pope's interfe- 
rence. J By such blind sacrifices of the 
greater to the less, of the future to the 
present, the sovereigns of Europe played 
continually into the hands of their subtle 
enemy. 

Though I am not aware that any pope, 
before Innocent III. had thus announced 
himself as the general arbiter of difi"eren- 
ces and conservator of the peace through- 
out Christendom, yet the scheme had 
been already formed, and the public mind 
was in some degree prepared to admit it. 
Gerohus, a writer who lived early in the 
twelfth century, published a theory of 
perpetual pacification, as feasible cer 
tainly as some that have been planned in 
later times. All disputes among princes 
were to be referred to the pope. If either 
party refused to obey the sentence of 
Rome, he was to be excommunicated 
and deposed. Every Christian sovereign 
vvas to attack the refractory delinquent, 
under pain of a similar forfeiture. i^ 
A project of this nature had not only a 
magnificence flattering to the ambition 
of the church, but was calculated to im- 
pose upon benevolent minds, sickened 
by the cupidity and oppression of princes. 



* Philippus rex Francise in manu ejus data fide 
promisit se ad mandatum ipsius pacem vel treugas 
cum rege Anglioe initurum. Richardus autem rex 
Angliae se difficilem ostendebat. Sed cum idem 
legatus ei cepit rigorem ecclesiasticum intentare, sanio- 
ri ductus coiisilio acquievit. — Vita Innocentii Te>- 
tii, t. iii., pars i., p. 503. 

t Innocentii Opera (Colonise, 1574), p. 124. 

X Id., p. 134. Innocent actually wrote some let- 
ters for this purpose, but without any eflFect, nor 
was he probably at all solicitous about it. — P. 139 
and 141. Nor had he interfered to procure Rich 
ard's release from prison : though Eleanor wrote 
him a letter, in which she asks, " Has not God giv- 
en you the power to govern nations and kings ?"— 
Velly, Hist, de France, t. iii., p. 382. 

9 Schmidt, t. iv., p. 232. 



288 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Vn. 



No control but that of religion appeared 
suflicient to restrain the abuses of society ; 
while its salutary influence had alr^^y 
been displayed both in the Truce of G^, 
which put the first check on the custom 
of private war, and more recently in the 
protection aflbrded to crusaders against 
all aggression during the continuance of 
their engagement. But reasonings from 
the excesses of liberty in favour of arbi- 
trary government, or from the calamities 
of national wars in favour of universal 
monarchy, involve the tacit fallacy, that 
perfect, or at least superior, wisdom and 
virtue will be found in the restraining 
power. The experience of Europe was 
not such as to authorize so candid an ex- 
pectation in behalf of the Roman see. 

There were certainly some instances, 
where the temporal supremacy of Inno- 
cent III., however usurped, may appear 
to have been exerted beneficially. He di- 
rects one of his legates to compel the ob- 
servance of peace between the kings of 
Castile and Portugal, if necessary, by ex- 
communication and interdict.* He en- 
joins the King of Aragon to restore his 
coin which he had lately debased, and of 
which great complaint had arisen in his 
kingdom.! Nor do I question his sin- 
cerity in these, or in many other cases 
of interference with civil government. 
A great mind, such as Innocent III. un- 
doubtedly possessed, though prone to 
sacrifice every other object to ambition, 
can never be indifferent to the beauty of 
social order, and the happiness of man- 
kind. But, if we may judge by the cor- 
respondence of this remarkable person, 
his foremost gratification was the display 
of unbounded power His letters, espe- 
cially to ecclesiastics, are full of vmpro- 
voked rudeness. As impetuous as Greg- 
ory VII., he is unwilling to owe any 
thing to favour; he seems to anticipate 
denial, heats himself into anger as he 
proceeds, and where he commences with 
sohcitation, seldom concludes without a 
menace. J An extensive learning in ec- 
clesiastical law, a close observation of 
whatever was passing in the world, an 
unwearied diligence, sustained his fear- 
less ambition.'^ With such a temper, and 

* Innocent. Opera, p. 146. t P. 378. 

t Idem, p. 31,73, 76, &c. &c. 

ij The following instance may illustrate the char- 
acter of this pope, and his spirit of governing the 
whole world, as much as those of a more public 
nature. He writes to the chapter of Pisa, that 
one Rubeus, a citizen of that place, had complain- 
ed to him, that having mortgaged a house and 
garden for two hundred and fifty-two pounds, on 
condition that he might redeem it before a fixed 
day, withm which time he had been unavoidably 



with such advantages, he was formidable 
beyond all his predecessors, and perhaps 
beyond all his successors. On every 
side the thunder of Rome broke over the 
heads of princes. A certain Swero is 
excommunicated for usurping the crown 
of Norway. A legate, in passing through 
Hungary, is detained by the king : Inno- 
cent writes in tolerably mild terms to 
this potentate, but fails not to intimate 
that he might be compelled to prevent his 
son's succession to the throne. The King 
of Leon had married his cousin, a princess 
of Castile. Innocent subjects the king- 
dom to an interdict. When the clergy 
of Leon petition him to remove it, be 
cause, when they ceased to perform their 
functions, the laity paid no tithes, and 
listened to heretical teachers when or- 
thodox mouths were mute, he consented 
that divine service with closed doors, 
but not the rites of burial, might be per- 
formed.* The king at length gave way, 
and sent back his wife. But a more il- 
lustrious victory of the same kind was 
obtained over Philip Augustus, who, hav- 
ing repudiated Isemburga of Denmark, 
had contracted another marriage. The 
conduct of the king, though not without 
the usual excuse of those times, near- 
ness of blood, was justly condemned ; 
and Innocent did not hesitate to visit his 
sins upon the people by a general in- 
terdict. This, after a short demur from 
some bishops, was enforced throughout 
France ; the dead lay unburied, and the 
living were cut off from the offices of 
religion, till Philip, thus subdued, took 
back his divorced wife. The submission 
of such a prince, not feebly supersti- 
tious like his predecessor Robert, nor 
vexed with seditions like the Emperor 
Henry IV., but brave, firm, and victo- 
rious, is perhaps the proudest trophy in 
the scutcheon of Rome. Compared with 
this, the subsequent triumph of Inno- 
cent over our pusillanimous John seems 
cheaply gained, though the surrender of 
a powerful kingdom into the vassalage 
of the pope may strike us as a proof of 



prevented from raising the money, the creditor 
had now refused to accept it ; and directs them to 
inquire into the facts, and if they prove truly 
stated, to compel the creditor by spiritual censures 
to restore the premises, reckonmg their rent during 
the time of the mortgage as part of the debt, and to 
receive the remainder. — Id., t. ii., p. 17. It must 
be admitted, that Irmocent HI. discouraged in gen 
eral those vexatious and dilatory appeals from in 
ferior ecclesiastical tribunals to the court of Rome, 
which had gained ground before his time, and es- 
pecially in the pontificate of Alexander HI. 

* Innocent. Opera, t. ii., p. 411. Vita Inno- 
cent III. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



289 



stupendous baseness on one side, and 
audacity on the other.* Yet, under this 
very pontificate, it was not unparallel- 
ed. Peter II., king of Aragon, received 
at Rome the belt of knighthood and the 
royal crown from the iiands of Inno- 
cent III. ; he took an oath of perpetual 
fealty and obedience to him and his suc- 
cessors; he surrendered his kingdom, 
and accepted it again, to be held by an 
annual tribute, in return for the protec- 
tion of the apostolic see.f This strange 
conversion of kingdoms into spiritual 
fiefs was intended as the price of se- 
curity from ambitious neighbours, and 
may be deemed analogous to the change 
of allodial into feudal, or, more strictly, 
to that of lay into ecclesiastical tenure, 
which was frequent during the turbu- 
lence of the darker ages. 

I have mentioned already, that among 
the new" pretensions advanced by the Ro- 
man see was that of confirming the 
election of an emperor. It had, however, 
been asserted rather incidentally than in 
a peremptory manner. But the doubtful 
elections of Philip and Otho, after the 
death of Henry VI., gave Innocent III. 
an opportunity of maintaining more pos- 
itively this pretended right. In a decre- 
tal epistle addressed to the Duke of Zah- 
ringen, the object of which is to direct 
him to transfer his allegiance from Phil- 
ip to the other competitor. Innocent, after 
stating the mode in which a regular elec- 
tion ought to be made, declares the 
pope's immediate authority to examine, 
confirm, anoint, crown, and consecrate 
the elect emperor, provided he shall be 
worthy ; or to reject him if rendered un- 
fit by great crimes, such as sacrilege, her- 
esy, perjury, or persecution of the church; 
in default of election, to supply the va- 
cancy ; or, in the event of equal suffrages, 
to bestow the empire upon any person at 
his discretion.! The princes of Germany 



* The stipulated annual payment of 1000 marks 
was seldom made by the kings of England ; but 
one is almost ashamed that it should ever have 
been so. Henry III. paid it occasionally, when he 
had any object to attain, and even Edward I. for 
some years : the latest payment on record is in the 
seventeenth of his reign. After a long discontin- 
uance, it was demanded in the fortieth of Edward 
III. (A. D. 1.366), but the parliament unanimously 
declared that John had no right to subject the king- 
dom to a superior without their consent ; which 
put an end for ever to the applications. — Prynne's 
Constitutions, vol. lii. 

t Zurita, Anales de Aragon, t. i., f. 91. This 
was not forgotten towards the latter part of the 
eame century, when Peter III. was engaged in the 
Sicilian war, and served as a pretence for the 
pope's sentence of deprivation. 

t Decretal., 1. i., tit. 6, c. 34, commonly cited 
Venerabilem. The rubric or synopsi« of tliis epis- 



were not much influenced by this hardy 
assumption, which manifests the temper 
of Innocent III. and of his court rather 
than their power. But Otho IV., at his 
coronation by the pope, signed a capitula- 
tion, which cut off several privileges en- 
joyed by the emperors, even since the 
concordat of Calixtus, in respect of epis- 
copal elections and investitures.* 

The noonday of papal dominion ex- 
tends from the pontificate of „ , 

T . TTT -1 1 i Papal author- 

Innocent III. inclusively to ityinthelhir 

that of Boniface VIII.; or, teemhcen- 
in other words, through the ^"■^^■ 
thirteenth century. Rome inspired du- 
ring this age all the terror of her ancient 
name. She was once more the mistress 
of the world, and kings were her vassals. 
I have already anticipated the two most 
conspicuous instances when her tempo- 
ral ambition displayed itself, both of 
which are inseparable from the civil his- 
tory of Italy. t In the first of these, her 
long contention with the house of Swa- 
bia, she finally triumphed. After his de- 
position by the council of Lyons, the af- 
fairs of Frederick II. went rapidly into 
decay. With every allowance for the 
enmity of the Lombards, and the jealous- 
ies of Germany, it must be confessed 
that the proscription of Innocent IV. and 
Alexander IV. was the main cause of 
the ruin of his family. There is, how- 
ever, no other instance, to the best of my 
judgment, where the pretended right of 
deposing kings has been successfully ex- 
ercised. Martin IV. absolved the sub- 
jects of Peter of Aragon from their alle- 
giance, and transferred his crown to a 
prince of France ; but they did not cease 
to obey their lawful sovereign. This is 
the second instance which the thirteenth 
century presents of interference on the 
part of the popes in a great temporal 
quarrel. As feudal lords of Naples and 
Sicily, they had indeed some pretext for 
engaging in the hostilities between the 
houses of Anjou and Aragon, as well as 
for their contest with Frederick II. But 
the pontiffs of that age, improving upon 
the system of Innocent III., and san- 
guine with past success, aspired to ren- 



tle asserts the pope's right electum imperatorem 
examinare, approbare, et inungere, consecrare e{ 
coronare, si est dignus ; vel rejicere si est indignus 
ut quia sacrilegus, excommunicatus, tyrannus, ft, 
tuus et hffireticus, paganus, perjurus, vel ecclesiae 
persecutor. Et electoribus nolentibus eligere. Pa- 
pa supplet. Et data paritate vocum cligentiurn, 
nee accedente majore concordia. Papa potest grati- 
ficari cui vult. The epistle itself is, if possible 
more strongly expressed. 

* Schmidt, t. iv., p. 149, 175. 

t See above, chapter iii 



290 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



der every European kingdom formally 
dependant upon the See of Rome. Thus 
Boniface Vlll., at the instigation of some 
emissaries from Scotland, claimed that 
monarchy as paramount lord, and inter- 
posed, though vainly, the sacred panoply 
of ecclesiastical rights to rescue it from 
the arms of Edward I.* 
This general supremacy effected by the 
Roman church over mankind in 
the twelfth and thirteenth cen- 
turies, derived material support from the 
promulgation of the canon law. The 
foundation of this jurisprudence is laid 
in the decrees of councils, and in the re- 
scripts or decretal epistles of popes to 
questions propounded upon emergent 
doubts relative to matters of discipline 
and ecclesiastical economy. As the ju- 
risdiction of the spiritual tribunals in- 
creased, and extended to a variety of per- 
sons and causes, it became almost neces- 
sary to establish a uniform system for 
the regulation of their decisions. After 
several minor compilations had appeared, 
Gratian, an Italian monk, published, about 
the year 1140, his Decretum, or general 
collection of canons, papal epistles, and 
sentences of fathers, arranged and digest- 
ed into titles and chapters, in imitation of 
the Pandects, which very little before had 
begun to be studied again with great dili- 
gence. This work of Gratian, though it 
seems rather an extraordinary perform- 
ance for the age when it appeared, has 
been censured for notorious incorrect- 
ness as well as inconsistency, and espe- 
cially for the authority given in it to the 
false decretals of Isidore, and conse- 
quently to the papal supremacy. It fell, 
however, short of what was required in 
the progress of that usurpation. Greg- 
ory IX. caused the five books of Decre- 
tals to be published by Raimond de Pen- 
nafort in 1234. These consist almost 
entirely of rescripts issued by the later 
popes, especially Alexander III., Inno- 
cent III., Honorius III., and Gregory him- 
self. They form the most essential part 
of the canon law, the Decretum of Gra- 
tian being comparatively obsolete. In 
these books we find a regular and co- 
pious system of jurisprudence, derived 
in a great measure from the civil law, 
but with considerable deviation, and pos- 
sibly improvement. Boniface VIII. add- 
ed a sixth part, thence called the Sext, 
itself divided into five books, in the na- 
ture of a supplement to the other five, 
of which it follows the arrangement, 
and composed of decisions promulgated 

* Dalrymple's Annals of Scotland, vol. i., p. 267. 



since the pontificate of Gregory IX. 
New constitutions were subjoined by 
Clement V. and John XXII., under the 
name of Clementines and Extravagantes 
Joannis ; and a few more of later pontiffs 
are included in the body of canon law, 
arranged as a second supplement after 
the manner of the Sext, and called Ex- 
travagantes Communes. 

The study of this code became of 
course obligatory upon ecclesiastical 
judges. It produced a new class of 
legal practitioners, or canonists ; of 
whom a great number added, like their 
brethren the civilians, their illustrations 
and commentaries, for which the obscu- 
rity and discordance of many passages, 
more especially in the Decretum, gave 
ample scope. From the general analogy 
of the canon law to that of Justinian, the 
two systems became, in a remarkable 
manner, collateral and mutually inter- 
twined, the tribunals governed by either 
of them borrowing their rules of decision 
from the other in cases where their pecu- 
liar jurisprudence is silent or of dubious 
interpretation.* But the canon law was 
almost entirely founded upon the legisla- 
tive authority of the pope ; the decretals 
are in fact but a new arrangement of the 
bold epistles of the most usurping pon- 
tiffs, and especially of Innocent III., with 
titles or rubrics, comprehending the sub- 
stance of each in the compiler's language. 
The superiority of ecclesiastical to tem- 
poral power, or at least the absolute in- 
dependence of the former, may be con- 
sidered as a sort of key-note which regu- 
lates every passage in the canon law.f 
It is expressly declared, that subjects 
owe no allegiance to an excommunica- 
ted lord, if after admonition he is not rec- 
onciled to the church. I And the rubric 
prefixed to the declaration of Frederick 
II. 's deposition in the council of Lyons 
asserts that the pope may dethrone the 
emperor for lawful causes.^ These ru- 



» Duck, De Usu Juris Civilis, 1. i., c. 8. 

t Constitntiones principum ecclesiasticis con- 
stitutionibus non praeeminent, sed obsequuntur. — • 
Decretum, distinct. 10. Statutum generale laico- 
rum ad ecclesias vel ad ecclesiasticaspersonas, vel 
eorum bona in earum prsjudicium non extenditur. — 
Decretal., 1. i., tit. 2, c. 10. Quaecunquea principi- 
bus in ordinibus vel in ecclesiasticis rebus decreta 
inveniuntur, nuUius auctoritatis esse monstrantur. 
— Decretum, distinct. 96. 

X Domino excommunicato manente, subditifidel- 
itatem non debent ; et si longo tempore in ea per- 
stiterint, et monitus non pareat eccJesiae, ab ejus 
debito absolvuntur. — Decretal., 1. v., tit. 37, c. 13. 
I must acknowledge, that the decretal epistle of 
Honorius III. scarcely warrants this general propo- 
sition of the rubric, though it seems to U;ad to ic 

() Papa imperatorem deponere potest ex causis 
' legitimis, 1. ii., tit. 13, c. 2. 



Cbap. VII.] 



ECCLESIASTICAL POWER. 



291 



brics to the decretals are not perhaps of 
direct authority as part of the law ; but 
they express its sense, so as to be fairly 
cited instead of it.* By means of her 
new jurisprudence, Rome acquired in ev- 
ery country a powerful body of advocates, 
who, though many of iheni were laymen, 
would, with the usual bigotry of lawyers, 
defend every pretension or abuse to 
which their received standard of authori- 
ty gave sanction.! 

Next to the canon law, I should reek- 
Mendicant on the institution of the mendi- 
orders. ^ant Orders among those circum- 
stances which principally contributed to 
the aggrandizement of Rome. By the 
acquisition, and in some respects the 
enjoyment, or at least ostentation of 
immense riches, the ancient monastic 
orders had forfeited much of the public 
esteem. t Austere principles as to the 
obligation of evangelical poverty were 
inculcated by the numerous sectaries of 
that age, and eagerly received by the 
people, already much alienated from an 
established hierarchy. No means ap- 
peared so efficacious to counteract this 
effect, as the institution of religious so- 
cieties, strictly debarred from the insidi- 
ous temptations of wealth. Upon this 
principle were founded the orders of 
Mendicant Friars, incapable, by the rules 
of their foundation, of possessing estates, 
and maintained only by alms and pious 
remunerations. Of these the two most 
celebrated were formed by St. Dominic 
and St. Francis of Assisa, and established 
by the authority of Honorius HI. in 1216 
aiid 1223. These great reformers, who 
have produced so extraordinary an effect 
upon mankind, were of very different 

* If I understand a bull of Gregory XIII., pre- 
fixed to his recension of the canon law, he con- 
firms the rubrics or glosses along with the text ; 
but I cannot speak with certainty as to his mean- 
ing- 

t For the canon law, I have consulted, besides 
the Corpus Juris Canonici, Tiraboschi, Storia 
della Litteratura, t. iv. and v. ; Giannone, 1. xiv., 
c. 3; 1. six., c. 3; 1. xxii., c. 8. Fleury, Institu- 
tions au Droit Ecclesiastique, t. i., p. 10, and S""* 
Discours sur I'Histoire Eccles. Duck, De Usu 
Juris Civilis, 1. i., c. 8. Schmidt, t. iv,, p. 39. F. 
Paul, Treatise of Benefices, c. 31. I fear that my 
few citations from the canon law are not made scien- 
tifically ; the proper mode of reference is to the first 
word ; but the book and title are rather more con- 
veniently and there are not many readers in Eng- 
land who will detect this impropriety. 

X It would be easy to bring evidence from the 
writings of every successive century to the general 
viciousness of the regular clergy, whose memory 
it is sometimes the fashion to treat with respect. 
See particularly Muratori, Dissert. 65, and Fleury, 
8">« Discours. The latter observes that their great 
wealth was the cause of this relaxation in disci- 
pline. 

T2 



characters ; the one, active and ferocious 
had taken a prominent part in the crusade 
against the unfortunate Albigeois, and 
was among the first who bore the terrible 
name of inquisitor; while the other, a 
harmless enthusiast, pious and sincere, 
but hardly of sane mind, was much rather 
accessary to the intellectual than to the 
moral degradation of his species. Vari- 
ous other mendicant orders were insti- 
tuted in the thirteenth century ; but most 
of them were soon suppressed, and be- 
sides the two principal, none remain but 
the Augustin and the Carmelites.* 

These new preachers were received 
with astonishing approbation by the laity, 
whose religious zeal usually depends a 
good deal upon their opinion of sincerity 
and disinterestedness in their pastors. 
And the progress of the Dominican and 
Franciscan friars in the thirteenth centu- 
ry bears a remarkable analogy to that of 
our English Methodists. Not deviating 
from the faith of the church, but profes- 
sing rather to teach it in greater puri- 
ty, and to observe her ordinances with 
greater regularity, while they imputed 
supineness and corruption to the secular 
clergy, they drew round their sermons a 
multitude of such listeners as in all agps 
are attracted by similar means. They 
practised all the stratagems of itinerancy, 
preaching in public streets, and adminis- 
tering the communion on a portable al- 
tar. Thirty years after their institution, 
an historian complains that the parish 
churches were deserted ; that none con- 
fessed except to these friars; in short, 
that the regular discipline was subverted. f 
This uncontrolled privilege of performing 
sacerdotal functions, which their modern 
antitypes assume for themselves, was 
conceded to the mendicant orders by the 
favour of Rome. Aware of the powerful 
support they might receive in turn, the 
pontiffs of the thirteenth century accu- 
mulated benefits upon the disciples of 
Francis and Dominic. They were ex- 
empted from episcopal authority ; they 
were permitted to preach or hear confes- 
sions without leave of the ordinary,! to 
accept of legacies, and to inter in their 
churches. Such privileges could not be 



* Mosheim's Ecclesiastical History. Fleury, 
gme Discours. Crevier, Histoire de I'Universite de 
Paris, t. i., p. 318. 

t Matt. Pans, p. 607. 

j Another reason for preferring the friars is given 
by Archbishop Peckham ; quoniam casus episco- 
pales reservati episcopis ab homine, vel a jure, 
communiter a Deum timentibus episcopis ipsis fra- 
tribus committuntur, et non presbyteris, mwntm sim- 
pticitas non suJRcit aliis dirigendis. — Wllkins, Con- 
ciha, t. ii., p. 169. 



292 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Vli. 



granted without resistance from the other 
clergy ; the bishops remonstrated, the 
university of Paris maintained a stren- 
uous opposition ; but their reluctance 
served only to protract the final decision. 
Boniface VIII. appears to have peremp- 
torily established the privileges and im- 
munities of the mendicant orders in 
1295.* 

It vi^as naturally to be expected that 
the objects of such extensive favours 
would repay their benefactors by a more 
than usual obsequiousness and alacrity 
in their service. Accordingly, the Do- 
minicans and Franciscans vied with each 
other in magnifying the papal supremacy. 
Many of these monks became eminent 
in canon law and scholastic theology. 
The great lawgiver of the schools, 
Thomas Aquinas, whose opinions the 
Dominicans especially treat as almost 
infallible, went into the exaggerated prin- 
ciples of his age in favour of the see of 
Rome.f And as the professors of those 
sciences took nearly all the learning and 
logic of the times to their own share, it 
was hardly possible to repel their argu- 
ments by any direct reasoning. But this 
partiality of the new monastic orders to 
thflt popes must chiefly be understood to 
apply to the thirteenth century, circum- 
stances occurring in the next which 
gave in some degree a different complex- 
ion to their dispositions in respect of the 
Holy See. 

We should not overlook, among the 
Papal dis- causes that contributed to the 
pensaiions dominion of the popes, their 
of marriage, prerogative of dispensing with 
ecclesiastical ordinances. The most re- 
markable exercise of this was as to the 
canonical impediments of matrimony. 
Such strictness as is prescribed by the 
Christian religion with respect to divorce 
was very unpalatable to the barbarous 
nations. They, in fact, paid it little re- 
gard ; under the Merovingian dynasty, 
even private men put away their wivesj 



* Crevier, Hist, de I'Universite de Paris, t. i. et 
t. ii., passim. Fleury, ubi supra. Hist, du Droit 
Ecclesiastique Frangois, t. i., p. 394, 396, 446. 
Collier's Ecclesiastical History, vol. i., p. 437, 448 
452. Wood's Antiquities of Oxford, vol. i., p. 376, 
480(Gutch's edition). 

t It was maintained by the enemies of the men- 
dicants, especially William St. Amour, that the 
pope could not give them a privilege to preach or 
perform the other duties of the parish priests. 
Thomas Aquinas answered, that a bishop might 
perform any spiritual functions within his diocess, 
or commit the charge to another instead, and that 
the pope being to the whole church wbat a bishop 
is to his diocess, might do the same everywhere. — 
Crevier, t. i., p. 474. 

t Marculfi Formulae, 1. ii., c 30 



at pleasure. In many capitularies of 
Cliarlemagne, we find evidence of the 
prevailing license of repudiation and 
even polygamy.* The principles which 
the church inculcated were in appearance 
the very reverse of this laxity ; yet they 
led indirectly to the same effect. IMar- 
riages were forbidden, not merely within 
the limits which nature, or those inveter- 
ate associations which we call nature, 
have rendered sacred, but as far as the 
seventh degree of collateral consanguin- 
ity, computed from a common ancestor.f 
Not only was affinity, or relationship by 
marriage, put upon the same footing as 
that by blood, but a fantastical connex- 
ion, called spiritual affinity, was invented, 
in order to prohibit marriage between a 
sponsor and godchild. A union, however 
innocently contracted, between parties 
thus circumstanced, might at any time be 
dissolved, and their subsequent cohabita- 
tion forbidden ; though their children, I 
believe, in cases where there had been 
no knovi^ledge of the impediment, were 
not illegitimate. One readily apprehends 
the facilities of abuse to which all this 
led ; and history is full of dissolutions of 
marriage, obtained by fickle passion or 
cold-hearted ambition, to which the 
church has not scrupled to pander on 
some suggestion of relationship. It is 
so difficult to conceive, I do not say any 
reasoning, but any honest superstition, 
which could have produced those mon- 
strous regulations, that I was at first in- 
clined to suppose them designed to give, 
by a side wind, that facility of divorce 
which a licentious people demanded, but 



* Although a man might not marry again when 
his wife had taken the veil, he was permitted to do 
so if she was infected with the leprosy. Compare 
Capitularia Pippini, A. D. 753 and 755. If a wom- 
an conspired to murder her husband, he might re- 
marry. — Idem, A. D. 753. A large proportion of 
Pepin's laws relate to incestuous connexions and 
divorces. One of Charlemagne seems to imply 
that polygamy was not unknown even among 
priests. Si sacerdotes plures uxores habuerint, 
sacerdotio priventur; quia ssecularibus deteriores 
sunt. — Capitul., A. D. 769. This seems to imply 
that their marriage with one was allowable, whicli 
nevertheless is contradicted by other passages in 
the Capitularies. 

t See the canonical computation explained in 
St. Marc, t. iii., p. 37C. Also in Blackstone's Law 
Tracts, Treatise on Consanguinity. In the elev- 
enth century, an opinion began to gain ground in 
Italy that third cousins might marry, being in the 
seventh degree according to the civil law. Peter 
Damian, a passionate abetter of Hildebrand and 
his maxims, treats this with horror, and calls it a 
heresy. — Fleury, t. xiii., p. 162. St. Marc, ubi su- 
pra. This opinion was supported by a refereure 
to the Institutes of Justinian ; a proof, among sev. 
eral others, how much earUer that book was known 
than IS vulgarly supposed. 



Chap. VH.] 



ECCLESIASTICAL POWER. 



293 



the church could not avowedly grant. 
This refinement would however be un- 
supported by facts. The prohibition is 
very ancient, and was really derived from 
the ascetic temper which introduced so 
many other absurdities.* It was not un- 
til the twelfth century that either this or 
any other established rules of discipline 
were supposed liable to arbitrary dispen- 
sation ; at least the stricter churchmen 
had always denied that the pope could 
infringe canons, nor had he asserted any 
right to do so.f But Innocent III. laid 
down as a maxim, that out of the pleni- 
tude of his power he might lawfully dis- 
pense with the law ; and accordingly 
granted, among other instances of this 
prerogative, dispensations from impedi- 
ments of marriage to the Emperor Otho 
IV. X Similar indulgences were given by 
his successors, though they did not be- 
come usual for some ages. The fourth 
Lateran Qflu ncil, in 1215, removed a great 
part of tBHrestraint, by permitting mar- 
riages beyOnd the fourth degree, or what 
we call third cousins ;^ and dispensations 
have been made more easy, when it was 
discovered that they might be converted 
into a source of profit. They served a 
more important purpose by rendering it 
necessary for the princes of Europe, who 
seldom could marry into one another's 
houses without transgressing the canon- 
ical limits, to keep on good terms with 
the court of Rome, which, in several in- 
stances that have been mentioned, ful- 
minated its censures against sovereigns 
who lived without permission in what 
was considered an incestuous union. 
The dispensing power of the popes 
was exerted in several cases of 
tions^"fro"m a temporal nature, particularly 
promissory in the legitimation of children, 
oaths. £qj. purposes even of succession. 
This Innocent III. claimed as an indirect 
consequence of his right to remove the 
canonical impediment which bastardy of- 

* Gregory I. pronounces matrimony to be un- 
lawful as far as the seventh degree ; and even, if I 
unders' and his meaning, as long as any relation- 
ship could be traced ; which seems to have been 
the maxim of strict theologians, though not abso- 
lutely enforced. — Du Cange, v. Generatio. Fleu- 
ry, Hist. Eccles., t. ix., p. 211. 

t De Marca, 1. iii., cc. 7, 8, 14. Schmidt, t. iv., 
p. 235. Dispensations were originally granted only 
as to canonical penances, but not prospectively to 
authorize a breach of disciplme. Gratian asserts 
that the pope is not bound by the canons; in 
which, Fleury observes, he goes beyond the False 
Decretals. — Septieme Discours, p. 291. 

J Secundum plenitudinem potestatis de jurepos- 
eumus supra jus dispensare.— Schmidt, t. iv., p. 
235. 

() Fleury, Institutions au Droit Ecclesiastique, t. 
i., p. 296 



fered to ordination ; since it would be 
monstrous, he says, that one who is le- 
gitimate for spiritual functions should 
continue otherwise in any civil matter.* 
But the most important and mischievous 
species of dispensations, was from the 
observance of promissory oaths. Two 
principles are laid down in the decretals ; 
that an oath disadvantageous to the 
church is not binding ; and that one ex- 
torted by force was of slight obligation, 
and might be annulled by ecclesiastical 
authority.! As the first of these maxims 
gave the most unlimited privilege to the 
popes of breaking all faith of treaties 
which thwarted their interest or passion, 
a privilege which they continually exer- 
cised,J so the second was equally con- 
venient to princes, weary of observing 
engagements towards their subjects or 
their neighbours. They reclaimed \^ith 
a bad grace against the absolution of their 
people from allegiance by an authority to 
which they did not scruple to repair in 
order to bolster up their own perjuries. 



* Decretal., 1. iv., tit. 17, c. 13. 

t Juramentum contra utilitatem ecclesiasticam 
prsstitum non tenet. — Decretal., 1. ii., tit. 24, c. 27, 
et Sext.,1. i., tit. 11, c. 1. A juramento per metum 
extorto ecclesia solet absolvere, et ejus transgres- 
sores ut peccantes mortaliter non punientur. — Eo- 
dem lib. et tit., c. 15. The whole of this title in 
the decretals upon oaths seems to have given the 
first opening to the lax casuistry of succeeding 
times. 

% Take one instance out of many. Piccinino, 
the famous condottiere of the fifteenth century, 
had promised not to attack Francis Sforza, at that 
time engaged against the pope. Eugenius IV. (the 
same excellent person who had annulled the com- 
pactata with the Hussites, releasing those who 
had sworn to them, and who afterward made the 
King of Hungary break his treaty with Amurath 
II.), absolves him from this promise, on the express 
ground that a treaty disadvantageous to the church 
ought not to be kept. — Sismondi, t. ix., p. 196. The 
church, in that age, was synonymous with the pa- 
pal territories in Italy. 

It was in conformity to this sweeping principle 
of ecclesiastical utility, that Urban VI. made the 
following solemn and general declaration against 
keeping faith with heretics. Attendentes quod hu- 
jusmodi confcEderationes, colligationes, et ligas seu 
conventiones factae cum hujusmodi hsereticis seu 
schismaticis postquam tales eflfecti erant, sunt te- 
meraris ; illicitae, et ipso jure nullse (etsi forte 
ante ipsorum lapsum in schisma, seu hiresin ini- 
tae, seu facts fuissent), etiam si forent juramento 
vel fide data firmatae, aut confirmatione apostolica 
vel quacunque firmitate alia roborats, postquam 
tales, ut praemittitur, sunt effecti. — Rymer, t. vii., 
p. 352. 

It was of little consequence that all divines and 
sound interpreters of canon law maintain that the 
pope cannot dispense with the divine or moral law, 
as De Marca tells us, 1. iii., c. 15, though he ad- 
mits that others of less sound judgment assert the 
contrary ; as was common enough, I believe, 
among the .Jesuits at the beginning of the seven- 
teenth century. His power of interpreting the law 
was of itself a privilege of dispensing with it. 



294 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VI\. 



Thus Edward I., the strenuous asserter 
of his temporal rights, and one of the first 
who opposed a barrier to the encroach- 
ments of the clergy, sought at the hands 
of Clement V. a dispensation from his 
oath to observe the great statute against 
arbitrary taxation. 

In all the earlier stages of papal domin- 
ion, the supreme head of the church had 
Encroach- been her guardian and protec- 
inemsof tQj. . and this beneficent charac- 

popes oil the ^ , , . . ^ 

freedom of ter appeared to receive its con- 
eiectioas, summation in the result of that 
arduous struggle which restored the an- 
cient practice of free election to ecclesi- 
astical dignities. Not long however after 
this triumph had been obtained, the popes 
began by little and little to interfere with 
the regular constitution. Their first step 
was conformable indeed to the prevailing 
system of spiritual independence. By 
the concordat of Calixtus, it appears that 
the decision of contested elections was 
reserved to the emperor, assisted by the 
metropolitans and suffragans. In a few 
cases during the twelfth century, this im- 
perial prerogative was exercised, though 
not altogether undisputed.* But it was 
consonant to the prejudices of that age 
to deem the supreme pontiff a more nat- 
ural judge, as in other cases of appeal. 
The point was early settled in England, 
where a doubtful election to the arch- 
bishopric of York, under Stephen, was 
referred to Rpme, and there kept five 
years in litigation. f Otho IV. surrender- 
ed this among other rights of the empire 
to Innocent III. by his capitulation :% and 
from that pontificate the papal jurisdic- 
tion over such controversies became 
thoroughly recognised. But the real aim 
of Innocent, and perhaps of some of his 
predecessors, was to dispose of bishop- 
rics, under pretext of determining con- 
tests, as a matter of patronage. So many 
And oil rules were established, so many 
rights of pat- formalities required by their 
ronage. constitutions, incorporated af- 

terward into the canon law, that the court 
of Rome might easily find means of annul- 

* Schmidt, t. iii., p. 299 ; t. iv., p. 149. Accord- 
ing to the concordat, elections ought to be made in 
the presence of the emperor or his officers ; but 
the chapters contrived to exclude them by degrees, 
though not perhaps till the thirteenth century. — 
Compare Schmidt, t. iii., p. 296; t. iv., p. 146. 

t Henry's Hist, of England, vol. v., p. 324. Lyt- 
tleton's Henry H., vol. i.. p. 356. 

t Schmidt, t. iv., p. 149. One of these was the 
spolhtm, or moveable estate of a bishop, which the 
emperor was used to seize upon his decease, p. 154. 
It was certainly a very leonine prerogative ; but the 
popes did not fail at a subsequent time to claim it 
for themselves. — Fleury, Institutions au Droit, t. i., 
p. 425. Lenfant, Concile de Constance, t. li., p. 130 



ling what had been done by the chapter, 
and bestowing the see on a favourite 
candidate.* The popes soon assumed 
not only a right of decision, but of devo- 
lution ; that is, of supplying tlie want of 
election, or the unfitness of the elected, 
by a nomination of their own.f Thus, 
Archbishop Langton, if not absolutely 
nominated, was at least chosen in an in- 
valid and compulsory manner, by the 
order of Innocent III. ; as we may read 
in our Englisli historians. And several 
succeeding archbishops of Canterbury 
equally owed their promotion to the pa- 
pal prerogative. Some instances of the 
same kind occurred in Germany, and it 
became the constant practice in Naples. | 
While the popes were thus artfully de- 
priving the chapters of their right of elec- 
tion to bishoprics, they interfered in a 
more arbitrary manner with the 
collation of inferior benefices, ^andais. 
This began, though in so insensible a man- 
ner as to deserve no notice bu: 



itsipie 

W 
\vm r 



Its con- 
sequences, with Adrian IV.,^vlK request- 
ed some bishops to conl'er the next bene- 
fice tliat should become vacant on a par- 
ticular clerk. 1^ Alexander III. used to 
solicit similar favours. || These recom- 
mendatory letters were called mandats. 
But though such requests grew more fre- 
quent than was acceptable to patrons, 
they were preferred in moderate lan- 
guage, and cotild not decently be refused 
to the apostolic chair. Even Innocent 
III. seems in general to be aware that he 
is not asserting a right ; though in one in- 
stance I have observed his violent tem- 
per break out against the chapter of Poi- 
tiers, who had made some demur to the 
appointment of his clerk, and whom he 
threatens with excommunication and in- 
terdict. T[ But, as we find in the liistory 
of all usurping governments, time changes 
anomaly into system, and injury into 
right ; examples beget custom, and cus- 
tom ripens into law : and the doubtful pre- 
cedent of one generation becomes the fun- 
damental maxim of another. Honorius 

* F. Paul, c. 30. Schmidt, t. iv., p. 177, 247. 

t Thss we find it e.x'pressed, as captiously as 
words could be devised, in the decretals, 1. i., tit. 
6, c. 22. Electus a majori et saniori parte capituii, 
si est, et erat idoneus tempore electionis, confirma- 
bitur : si autem erit indignus in ordinibus scientia 
vel setate, et fuit scienter electus, electus a minori 
parte, si est dignus, confirmabitur. 

A person canonically disqualified when presented 
to the pope for confirmation was said to be postula 
tus, not electus. 

t Giannone, 1. xiv., c. 6 ; 1. xix., c. 5. 

(j St. Marc, t. v., p. 41. .\rt de verifier les Dates 
t. i., p. 288. Encyclopedie, Art. Mandats. 

II Schmidt, t. iv., p. 239. 

if Innocent III., Opera, p. 502. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



295 



III. requested that two prebends in eve- 
ry church might be preserved for the 
Holy Soe; but neither the bishops of 
Franco nor England, to whom he pre- 
ferred this petition, were induced to com- 
ply with it.* Gregory IX. pretended to 
act generously in limiting himself to a 
single expectative, or letter directing a 
particular clerk to be provided with a 
benefice in every church.f But his prac- 
tice went much farther. No country 
was so intolerably treated by this pope 
and his successors as England, through- 
out the ignominious reign of Henry HI. 
Her church seemed to have been so 
richly endowed only as the free pasture 
of Italian priests, who were placed, by 
the mandatory letters of Gregory IX. and 
Innocent IV., in all the best benefices. 
If we may trust a solemn remonstrance in 
the name of the whole nation, they drew 
from England, in the middle of the thir- 
teenth century, sixty or seventy thou- 
sand marks every year ; a sum far ex- 
ceeding the royal revenue. J This was 
asserted by the English envoys at the 
council of Lyons. But the remedy was 
not to be sought in remonstrances to the 
court of Rome, which exulted in the 
success of its encroachments. There 
"was no defect of spirit in the nation to 
oppose a more adequate resistance ; but 
the individual upon the throne sacrificed 
the public interest sometimes through 
habitual timidity, sometimes through silly 
ambition. If England, however, suffered 
more remarkably, yet other countries 
were far from being untouched. A Ger- 
man writer, about the beginning of the 
fourteenth century, mentions a cathedral 
where, out of about thirty-five vacancies 
of prebends that had occurred Avithin 
twenty years, the regular patron had 
filled only two.^ The case was not very 
different in France, where the continual 
usurpations of the popes are said to have 
produced the celebrated Pragmatic Sanc- 
tion of St. Louis. This edict, which is 
not of undisputed authority, contains 
three important provisions ; namely, that 
all prelates and other patrons shall enjoy 
their full rights as to the collation of 
benefices, according to the canons ; that 
churches shall possess freely their rights 
of election ; and that no tax or pecuniary 
exaction shall be levied by the pope, 
without consent of the king and of the 
national church. (| We do not find, how- 

* Matt. Paris, p. 267. De Marca, 1. iv., c. 9. 

+ F. Paul on Benefices, c. 30. 

t M. Paris, p. 579, 740. 

() Schmidt, t. vi . p. 104. 

II Oidonnances des Rois de France, t. i., p. 97. 



ever, that the French government acted 
up to the spirit of this ordinance, if it be 
genuine ; and the Holy See continued to 
invade the rights of collation with less 
ceremony than they had hitherto used. 
Clement IV. published a bull in I:2G6, 
which, after asserting an absolute pre- 
rogative of the supreme pontiflf to dispose 
of all preferments, whether vacant or in 
reversion, confines itself in the enacting 
words to the reservation of such benefi- 
ces as belong to persons dying at Rome 
(vacantes in curi&).* These had for 
some time been reckoned as a part of 
the pope's special patronage ; and their 
number, when all causes of importance 
were drawn to his tribunal, when metro- 
politans were compelled to seek their 
pallium in person, and even by a recent 
constitution, exempt abbots to repair to 
Rome for confirmation,! not to mention 
the multitude who flocked thither as mere 
courtiers and hunters after promotion, 
must have been very considerable. Bon- 
iface VIII. repeated this law of Clement 
IV. in a still more positive tone ;% and 
Clement V. laid down as a maxim, that 
the pope might freely bestow, as univer- 
sal patron, all ecclesiastical benefices.^ 
In order to render these tenable by their 
Italian courtiers, the canons against plu- 
ralities and nonresidence were dispensed 
with ; so that individuals were said to 
have accumulated fifty or sixty prefer- 
ments. || It was aconseqi|Bnce provisions, 
from this extravagant princi- reserves, &c. 
pie, that the pope might prevent the or- 
dinary collator upon a vacancy ; and as 
this could seldom be done with sufficient 
expedition in places remote from his 
court, that he might make reversionary 
grants during the life of an incumbent. 



There are several material objections to the au- 
thenticity of this edict, and in particular that we do 
not find the king to have had any previous differ- 
ences with the see of Rome ; on the contrary, he 
was just indebted to Clement IV. for bestowing 
the crown of Naples on his brother, the Count of 
Provence. Velly has defended it, Hist, de France, 
t. vi., p. 57, and in the opinion of the learned lien- 
edictine editors of L'Art de verifier les Dates, t. i., 
p. 585, cleared up all difficulties as to its genuine- 
ness. In fact, however, the Pragmatic Sanction 
of St. Louis stands by itself, and can only be con- 
sidered as a protestation against abuses which it 
was still impossible to suppress. 

* Sext. Decretal., 1. iii., t. iv., c. 2. F. Paul on 
Benefices, c. 35. This writer thinks the privilege 
of nominating benefices vacant in curia to have 
been among the first claimed by the popes, even 
before the usage of mandats, c. 30. 

t Matt. Paris, p. 817. 

t Se-tt. Decretal., 1. iii., t. iv., c. 3. He extend- 
ed the vacancy in curia to all places within two 
days' journey of the papal court. 

(S V Paul c 35 

li Id., c. 33, 34, 35. Schmidt, t. iv., p. 104. 



296 



EUROPE DURING THE MIDDLE AGES. 



[Uhap. vir. 



or reserve certain benefices specifically 
for his own nomination. 

The persons as well as estates of eccle- 
Papai taxa- siastics were secure from arbi- 
tion of the trary taxation in all the king- 
ciergy. (joms founded upon the ruins of 
the empire, both by the common liberties 
of freemen, and more particularly by their 
own immunities and the horror of sacri- 
lege.* Such at least was their legal secu- 
rity, whatever violence might occasion- 
ally be practised by tyrannical princes. 
But this exemption was compensated by 
annual donatives, probably to a large 
amount, which the bishops and monaste- 
ries were accustomed, and as it were 
compelled, to make to their sovereigns.! 
They were subject also, generally speak- 
ing, to the feudal services and prestations. 
Henry I. is said to have extorted a sum 
of money from the English church. | 
But the first eminent instance of a gen- 
eral tax required from the clergy Avas 
the famous Saladine tithe ; a tenth of all 
moveable estate, imposed by the kings 
of France and England upon all their 
subjects, with the consent of their great 
councils of prelates and barons, to de- 
fray the expense of their intended cru- 
sade. Yet even this contribution, though 
called for by the imminent peril of the 
Holy Land after the capture of Jerusa- 
lem, was not paid without reluctance ; the 
clergy doubtless anticipating the future 
extension of such a precedent.^ Many 
years had not* lapsed when a new de- 
mand was made upon them, but from 
a different quarter. Innocent III. (the 
name continually recurs when we trace 
the commencement of a usurpation) im- 
posed, in 1199, upon the whole church, a 
tribute of one fortieth of moveable estate, 
to be paid to his own collectors ; but 
strictly pledging himself that the money 
should only be applied to the purposes 
of a crusade. II This crusade ended, as 
is well known, in the capture of Con- 
stantinople. But the word had lost much 
of its original meaning; or rather that 
meaning had been extended by ambition 
and bigotry. Gregory IX. preached a 
crusade against the Emperor Frederick, 
in a quarrel which only concerned his 
temporal principality ; and the church of 
England was taxed by his authority to 
carry on this holy war.T[ After some op- 



* Muratori, Dissert. 70. Schmidt, t. iii., p. 211. 

t Id., Ibid. Du Cange, v. Dona. 

i Eadmer, p. 83. 

i) Schmidt, t. iv., p. 212. Lyttleton's Henry II., 

vol. iii., p. 472. Velly, t. iii., p. 316. 

|l Innocent. Opera, p. 266. 
T M. Paris, p. 470. It was hardly possible for 



position the bishops submitted ; and from 
that time no bounds were set to the rapa- 
city of papal exactions. The usurers of 
Cahors and Lombardy, residing in Lon- 
don, took up the trade of agency for the 
pope ; and in a few years he is said, 
partly by levies of money, partly by the 
revenues of benefices, to have plundered 
the kingdom of 950,000 marks ; a sum 
equivalent, I think, to not less than fif- 
teen millions sterling at present. Inno- 
cent IV., during whose pontificate the 
tyranny of Rome, if we consider her tem- 
poral and spiritual usurpations together, 
reached perhaps its zenith, hit upon the 
device of ordering the English prelates 
to furnish a certain number of mtn-at- 
arms to defend the church at their ex- 
pense. This would soon have been com- 
muted into a standing escuage instead of 
military service.* But the demand was 
perhaps not complied with, and we do 
not find it repeated. Henry III.'s pu- 
sillanimity would not permit any eftect- 
ual measure to be adopted ; and indeed he 
sometimes shared in the booty, and w^as 
indulged with the produce of taxes im- 
posed upon his own clergy to defray the 
cost of his projected war against Sicily. f 
A nobler example was set by the kingdom 
of Scotland : Clement IV. having, in 
1267, granted the tithes of its ecclesias- 
tical revenues for one of his mock cru- 
sades, King Alexander III., with the con- 
currence of the church, stood up against 
this encroachment, and refused the legate 
permission to enter his dominions. J Tax- 



the clergy to make any effective resistance to the 
pope, without unravelling a tissue which they liad 
been assiduously weaving. One English prelate 
distinguished himself in this reign by his strenu- 
ous protestation against all abuses of the church. 
This was Robert Grosstete, bishop of Lincoln, who 
died in 1253, the most learned Englishman of his 
time, and the first who had any tincture of Greek 
literature. Matthew Paris gives him a high char- 
acter, which he deserved for his learning and in- 
tegrity ; one of his commendations is for keeping 
a good table. But Grosstete appears to have been 
imbued in a great degree with the spirit of his age 
as to ecclesiastical power, though unwilling to 
yield it up to the pope : and it is a strange thing to 
reckon him among the precursors of the Reforma- 
tion.— M. Paris, p. 754. Berington's Literary His- 
tory of the Middle Ages, p. 378. 

* M. Paris, p. 613. It would be endless to mul- 
tiply proofs from Matthew Pans, which indeed 
occur in almost every page. His laudable zeal 
against papal tyranny, on which some Protestant 
writers have been so pleased to dwell, was a little 
stimulated by personal feelings for the abbey of St 
Alban's ; and the same remark is probably applica 
ble to his love of civil liberty. 

t Rymer, t. i., p. 599, &c. The substance ol 
English ecclesiastical history during the reign of 
Henry 111. may be collected from Henry, and still 
better from Collier. 

J Dalrymple's Annals of Scotland, vol. i. o 179 



Chap. VU.] 



ECCLESIASTICAL POWER. 



297 



ation of the clergy was not so outra- 
geous in other countries ; but the popes 
granted a tithe of benefices to St. Louis 
for each of his own crusades, and also 
for the expedition of Charles of Anjou 
against Manfred.* In the council of 
Lyons, held by Gregory X. in 1274, a 
general tax of the same proportion was 
imposed on all the Latin church, for the 
pretended purpose of carrying on a holy 
war.f 

These gross invasions of ecclesiastical 
^. „ . property, however submissively 

Disaffection ^ J i j j 

towards the endured, produced a very gen- 
court of eral disaffection towards the 
^°'"^- court of Rome. The reproach 
of venality and avarice was not indeed 
cast for the first time upon the sovereign 
pontiffs ; but it had been confined in ear- 
lier ages to particular instances, not 
affecting the bulk of the Catholic church. 
But, pillaged upon every slight pretence, 
without law and without redress, the 
clergy came to regard their once pater- 
nal monarch as an arbitrary oppressor. 
All writers of the thirteenth and follow- 
ing centuries complain in terms of un- 
measured indignation, and seem almost 
ready to reform the general abuses of 
the church. They distinguished, how- 
ever, clearly enough between the abuses 
which oppressed them and those which 
it was their interest to preserve, nor had 
the least intention of waiving their own 
immunities and authority. But the laity 
came to more universal conclusions. A 
spirit of inveterate hatred grew up among 
them, not only towards the papal tyranny, 
but the whole system of ecclesiastical 
independence. The rich envied and 
longed to plunder the estates of the su- 
perior clergy ; the poor learned from the 
Waldenses and other sectaries to deem 
such opulence incompatible with the 
character of evangelical ministers. The 
itinerant minstrels invented tales to sat- 
irise vicious priests, whicli a predis- 
posed multitude eagerly swallowed. If 
the thirteenth century was an age of 
more extravagant ecclesiastical preten- 
sions than any which had preceded, it 
was certainly one in which the disposi- 
tion to resist them acquired great con- 
sistence. 

To resist had indeed become strictly 
necessary, if the temporal gov- 
ecdesaastr- ernments of Christendom would 
cai jurisdic- occupy any better station than 
*'""• that of officers to the hierarchy. 

I have traced already the first stage of 



* Velly, t. iv., p. 343 ; t. v., p. 343 ; t. vi., p. 47. 
t Idem, t. vi., p. .308. St. Marc, t. vi., p. 347. 



that ecclesiastical jurisdiction, which, 
through the partial indulgence of sover- 
eigns, especially Justinian and Charle- 
magne, had become nearly independent 
of the civil magistrate. Several ages of 
confusion and anarchy ensued, during 
which the supreme regal authority was 
literally suspended in France, and not 
much respected in some other countries. 
It is natural to suppose that ecclesiasti- 
cal jurisdiction, so far as even that was 
regarded in such barbarous times, would 
be esteemed the only substitute for coer- 
cive law, and the best security against 
wrong. But I am not aware that it ex- 
tended itself beyond its former limits till 
about the beginning of the twelfth cen- 
tury. From that time it rapidly en- 
croached upon the secular tribunals, and 
seemed to threaten the usurpation of an 
exclusive supremacy over all persons and 
causes. The bishops gave the tonsure 
indiscriminately, in order to swell the 
hst of their subjects. This sign of a 
clerical state, though below the lowest 
of their seven degrees of ordination, im- 
plying no spiritual office, conferred the 
privileges and immunities of the profes- 
sion on all who wore an ecclesiastical 
habit, and had only once been married.* 
Orphans and widows, the stranger and 
the poor, the pilgrim and the leper, under 
the appellation of persons in distress 
(miserabiles personse), came within the 
peculiar cognizance and protection of the 
church ; nor could they be sued before 
any lay tribunal. And the whole body 
of crusaders, or such as merely took the 
vow of engaging in a crusade, enjoyed 
the same clerical privileges. • 

But where the character of the litigant 
parties could not, even with this large 
construction, be brought within their pale, 
the bishops found a pretext for their juris- 
diction in the nature of the dispute. Spir- 
itual causes alone, it was agreed, could 
appertain to the spiritual tribunal. But 
the word was indefinite ; and according 
to the interpreters of the twelfth century, 
the church was always bound to prevent 
and chastise the commission of sin. By 
this sweeping maxim, which we have 



* Clerici qui cum unicis et virginibus coutraxe- 
runt, si tonsuram et vestes del'eraut clericales, privi- 

legium retineant prassenti declaramns edicto, 

hujusmodi clericos conjugates pro commissis ab iis 
excessibus vel delictis, trahi non posse criminaliter 
aut civiliter ad judicium ssculare. — Bonifacius 
Octavus, in Sext. Decretal., 1. iii., tit. ii., c. i. Philip 
the Bold, however, had subjected these married 
clerks to taxes, and later ordinances of the French 
kings rendered them amenable to temporal juris- 
diction ; from which, in Naples, by various provis- 
ions of the Angevin line, they always crntinued 
free — Giannone, 1. xix., c. 5. 



298 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



seen Innocent III. apply to vindicate his 
control over national quarrels, the com- 
mon differences of individuals, which gen- 
erally involve some charge of wilful inju- 
ry, fell into the hands of a religious judge. 
One is almost surprised to find that it did 
not extend more universally, and might 
praise the moderation of the church. 
Real actions, or suits relating to the prop- 
erty of land, were always the exclusive 
province of the lay court, even where a 
clerk was the defendant.* But the ec- 
clesiastical tribunals took cognizance of 
breaches of contract, at least where an 
oath had been pledged, and of personal 
trusts. f They had not only an exclusive 
jurisdiction over questions immediately 
matrimonial, but a concurrent one with 
the civil magistrate in France, though 
never in England, over matters incident 
to the nuptial contract, as claims of mar- 
riage portion and of dower.J They took 
the execution of testaments into their 
hands, on account of the legacies to pious 
uses which testators were advised to be- 
queath.^ In process of time, and under 
favourable circumstances, they made still 
greater strides. They pretended a right 
to supply the defects, the doubts, or the 
negligence of temporal judges ; and in- 
vented a class of mixed causes, whereof 
the lay or ecclesiastical jurisdiction took 
possession according to priority. Besides 
this extensive authority in civil disputes, 
the)'- judged of some offences, which natu- 
rally belong to the criminal law, as well as 
of some others, which participate of a civ- 
il and criminal nature. Such were perju- 
ry, sacrilege, usury, incest, and adultery ;|| 
«from the punishment of all which the sec- 
ular magistrate refrained, at least in Eng- 
land, after they had become the prov- 
ince of a separate jurisdiction. Excora- 



* Decretal., 1. ii., t. ii. Ordonnances des Rois, t. 
i., p. 40 (A. D. 1189). In the councilor Lambeth, 
in 1261, the bishops claim a right to judge inter 
clericos suos, vel mter laicos conquerentes et cler- 
icos defendentes, in personalibus actionibus super 
contractibus, aut delictis, aut quasi, i. e. quasi de- 
lictis.— Wilkins, Concilia, t. i., p. 747. 

f Ordonnances des Rois, p. 319 (A. D. 1290). 

t Idem, p. 40, 121, 220,319. 

I Id., p. 319. Glanvil, 1. vii., c. 7. Sancho IV. 
gave the same jurisdiction to the clergy of Castile, 
''^eoria de las Cortes, t. lii., p. 20 ; and in other re- 
spects followed the example of his father Alfonso 
X. in favouring their encroachments. The church 
of Scotland seems to have had nearly the same ju- 
risdiction as that of England.— Pinkerton's Histo- 
ry of Scotland, vol. i., p. 173. 

I! It was a maxim of the canon, as well as the 
common law, that no person should be punished 
twice for the same offence ; therefore, if a clerk had 
been degraded, or a penance imposed on a lay- 
man, it was supposed unjust to proceed against 
hun in a temporal court. 



munication still continued the only cha.s- 
tisement which the church could directly 
inflict. But the bishops acquired a right 
of having their own prisons for lay of- 
fenders,* and the monasteries were the 
appropriate prisons of clerks. Their 
sentences of excommunication were en- 
forced by the temporal magistrate by 
imprisonment or sequestration of ef- 
fects; in some cases by confiscation or 
death.f 

The cler^ did not forget to secure 
along with this jurisdiction their Ami immu- 
own absolute exemption from "''>'• 
the criminal justice of the state. This, 
as I have above mentioned, had been 
conceded to them by Charlemagne ; but 
how far the same privilege existed in 
countries not subject to his empire, such 
as England, or even in France and Ger- 
many during the three centuries after his 
reign, is what I am not able to assert. 
The False Decretals contain some pas- 
sages in favour of ecclesiastical immuni- 
ty, which Gratian repeats in his collec- 
tion.! About the middle of the twelfth 
century the principle obtained general 
reception, and Innocent III. decided it to 
be an inalienable right of the clergy, 
whereof they could not be divested even 
by their own consent.^ Much less were 
any constitutions of princes, or national 
usages, deemed of force to abrogate such 
an important privilege. |1 These, by the 
canon law, were invalid when they affect- 
ed the rights and liberties of holy church.^ 
But the spiritual courts were charged 
with scandalously neglecting to visit the 
most atrocious offences of clerks with 

* Charlemagne is said by Giannone to have per 
milted the bishops to have prisons of their own, 1. 
vi., c. 7. 

t Giannone, 1. xix., c. 5, t. iii. Schmidt, t. iv., p. 
195 ; t. vi., p. 125. Fleury, 7^^ Discours, Mem. de 
I'Acad. des Inscript., t. xxxix., p. 603. Ecclesiasti- 
c'al jurisdiction not having been uniform in differ 
entages and countries, it is difficult, without much 
attention, to distinguish its general and permanent 
attributes from those less completely established. 
Its description, as given in the Decretals, lib. h., tit. 
ii., De foro competenti, does not support the pre- 
tensions made by the canonists, nor come up to 
the sweeping definition of ecclesiastical jurisdic- 
tion by Boniface VIII. in the Sext., 1. lii., tit. xxiii., 
c. 40, sive ambas partes hoc voluerint, sive una 
super cansis ecclesiasticis, sive qua3 ad forum, ec- 
clesiasticum ratione personarum, negotiorum, vel 
rerum de jure vel de antiqua consuetudine perti- 
nere noscuntur. 

t Fleury, 7'"'= Discours. 

6 Idem, Institutions au Droit Eccl6s., t. n., p. 9. 

II In criminalibus causis in nullo casu possur.* 
clerici ab aliquo quam ab ecclesiastico judice con 
demnari, etiamsi consuetudo regia habeat ut fures 
a judicibus saecularibus judicentur. — Decretal., 1, i., 
tit. i., c. 8. 

V Decret., distinct. 96. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



299 



such punishment as they could inflict. 
The church could always absolve from her 
own censures ; and confinement in a mon- 
astery, the usual sentence upon crimi- 
nals, was frequently slight and temporary. 
Several instances are mentioned of hei- 
nous outrages that remained nearly un- 
punished through the shield of ecclesias- 
tical privilege.* And as the temporal 
courts refused their assistance to a rival 
jurisdiction, the clergy had no redress for 
their own injuries, and even the murder 
of a priest at one time, as we are told, 
was only punishable by excommunica- 
tion, f 

Such an incoherent medley of laws 
Endeavours ^"^ magistrates, upon the sym- 
made to re- metrical arrangement of which 
England"' ^'^ social economy mainly de- 
pends, could not fail to produce 
a violent coUision. Every sovereign was 
interested in vindicating the authority 
of the constitutions which had been 
formed by his ancestors, or by the people 
whom he governed. But the first who 
undertook this arduous work, the first 
who appeared openly against ecclesias- 
tical tyranny, was our Henry II. The 
Anglo-Saxon church, not so much con- 
nected as some others with Rome, and 
enjoying a sort of barbarian immunity 
from the thraldom of canonical discipline, 
though rich, and highly respected by a 
devout nation, had never, perhaps, de- 
sired the thorough independence upon 
secular jurisdiction at which the con- 
tinental hierarchy aimed. William the 
Conqueror first separated the ecclesias- 
tical from the civil tribunal, and forbade 
the bishops to judge of spiritual causes 
in the hundred court. J His language is, 
however, too indefinite to warrant any 

* Collier, vol. i., p. 351. It is laid down in the 
canon laws that a layman cannot be a witness in a 
criminal case against a clerk.— Decretal., 1. ii., tit. 
XX., c. 14. 

t Lyttleton's Henry II., vol. iii., p. 332. This 
must be restricted to that period of open hostility 
between the church and state. 

X Ut nullus episcopus vel archidiaconus de legi- 
bus episcopalibus amplius in Hundret placita ten- 
eant, nee causam quae ad regimen animarum perti- 
net, ad judicium saecularium hominum adducant. 
— Wilkins, Leges Anglo-Saxon., 230. 

Before the conquest, the bishop and earl sat to- 
gether m the court of the county or hundred ; and, 
as we may infer from the tenourof this charter, ec- 
clesiastical matters were decided loosely, and rather 
by the common law than according to tlie canons. 
This practice had been already forbidden by some 
canons enacted under Edgar, id., p. 83 ; but appa- 
rently with little effect. The separation of the civil 
and ecclesiastical tribunals was not made in Den- 
mark till the reign of Nicolas, who ascended the 
throne in 1105. — Langebek, Script. Rer. Danic, 
t. iv., p. 380. Others refer the law to St. Canut, 
about 1080, t. ii., p. 209. 



decisive proposition as to the nature of 
such causes ; probably they had not yet 
been carried much beyond their legiti- 
mate extent. Of clerical exemption from 
the secular arm, we find no earlier notice 
than in the coronation oath of Stephen ; 
which, though vaguely expressed, may 
be construed to include it.* But I am 
not certain that the law of England had 
unequivocally recognised that claim at 
the time of the constitutions of Cla- 
rendon. It was at least an innova- 
tion, which the legislature might with- 
out scruple or transgression of justice 
abolish. Henry II., in that famous stat- 
ute, attempted in three respects to limit 
the jurisdiction assumed by the church; 
asserting for his own judges the cogni- 
zance of contracts, however confirmed 
by oath, and of rights of advowson, and 
also that of olfences committed by clerks, 
whom, as it is gently expressed, after 
conviction or confession the church ought 
not to protect.f These constitutions 
were the leading subject of difference 
between the king and Thomas Becket. 
Most of them were annulled by the 
pope, as derogatory to ecclesiastical 
liberty. It is not improbable, however, 
that if Louis VII. had played a more 
dignified part, the See of Rome, which 
an existing schism rendered dependant 
upon the favour of those two monarchs, 
might have receded in some measure 
from her pretensions. But France im- 
plicitly giving way to the encroachments 
of ecclesiastical power, it became impos- 
sible for Henry completely to withstand 
them. 

The constitutions of Clarendon, how- 
ever, produced some effect, and, in the 
reign of Henry III., more unremitted and 
successful efforts began to be made to 
maintain the independence of temporal 
government. The judges of the king's 
court had until that time been them- 
selves principally ecclesiastics, and con- 
sequently tender of spiritual privileges.! 
But now, abstaining from the exercise of 
temporal jurisdiction, in obedience to the 
strict injunctions of their canons,^ the 
clergy gave place to common lawyers, 
professors of a system veiy discordant 
from their own. These soon began to 



* Ecclesiasticarumpersonarum et omnium cleri- 
corum, et rerum eorum justitiam et potestatem, et 
distributionem honorum ecclesiasticorum, in manu 
episcoporum esse perhibeo, et confirmo. — Wilkins, 
Leges Anglo-Saxon., p. 310. 

t Wilkins, Leges Anglo-Saxon., p. 323. Lyttle- 
ton's Henry II., Collier, &c. 

t Dugdale's Origines Juridicales, c. 8. 

^ Decretal., 1. i., tit. xxxvii., c. 1. Wilkins, Con 
cilia, t. ii., p. 4. 



300 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



assert the supremacy of their jurisdiction 
by issuing writs of proliibition, when- 
ever the ecclesiastical tribunals passed 
the boundaries which approved use had 
established.* Little accustomed to such 
control, the proud hierarchy chafed under 
the bit ; several provincial synods re- 
claim against the pretensions of laymen 
to judge the anointed ministers, whom 
they were bound to obey;t the cogni- 
zance of rights of patronage and breaches 
of contract is boldly asserted ;J but firm 
and cautious, favoured by the nobility, 
though not much by the king, the judges 
receded not a step, and ultimately fixed 
a barrier which the church was forced 
to respect.^ In the ensuing reign of 
Edward I., an archbishop acknowledges 
the abstract right of the king's bench to 
issue prohibitions ;|| and the statute en- 
titled Circumspecte agatis, in the thir- 
teenth year of that prince, while by its 
mode of expression it seems designed to 
guaranty the actual privileges of spirit- 
ual jurisdiction, had a tendency, espe- 
cially with the disposition of the judges, 
to preclude the assertion of some which 
are not therein mentioned. Neither the 
right of advowson nor any temporal con- 
tract is specified in this act as pertain- 
ing to the church ; and accordingly the 
temporal courts have ever since main- 
tained an undisputed jurisdiction over 
them.*l[ They succeeded also partially 

■* Prynne has produced several extracts from the 
pipe-roils of Henry II., where a person has been 
fined quia placitavit de laico feodo in curia chris- 
tianitatis. And a bishop of Durham is fined five 
hundred marks quia tenuit placitum dc advocatione 
cujusdam ecclesics in curia christianitatis. — Epistle 
dedicatory to Prynne's Records, vol. iii. Glanvil 
gives the form of a writ of prohibition to the spirit- 
ual court for inquiring de feodo laico; for it had 
jurisdiction over lands in frankalmoign. This is 
conformable to the constitutions of Clarendon, and 
shows that they were still in force ; though Col- 
lier has the assurance to say, that they were re- 
pealed soon after Becket's death, supporting this 
also by a false quotation from Glanvil. — Ecclesi- 
ast. Hist., vol. i., p. 380. Lyttleton's Henry II., 
vol. iii., p. 97. 

t Cum judicandi Christos domini nulla sit laicis 
attributa potestas. apud quos manet necessitas ob- 
sequendi. — Wilkins, Concilia, t. i., p. 747. 

t Id. ibid. ; et t. ii., p. 90. 

i/ Vide Wilkins, Concilia, t. ii., passim. 

II Licet prohibitiones hujusmodi a curia chris- 
tianissimi regis nostri just^ proculdubio, ut di.xi- 
mus, concedantur. — Idem, t. ii., p. 100, and p. 115. 
Yet after such an acknowledgment by Archbishop 
Peckham, in the height of ecclesiastical power, 
and after a practice deducible from the age of 
Henry II , some Protestants, as Archbishop Ban- 
croft (2 Inst., 609) ; Gibson (preface to Codex 
Jur. EccL); Collier (Ecclesiast. Hist., vol. i., p. 
622), have complained that the court of king's 
bench should put any limits to their claims of spir- 
itual jurisdiction. 

H The statute Circumspect^ agatis, for it is ac- 



in preventing the impunity of crimes 
perpetrated by clerks. It was enacted 
by the statute of Westminster, in 1275, 
or rather a construction was put upon 
that act, which is obscurely worded, tiiat 
clerks endicted for felony should not be 
delivered to their ordinary until an in- 
quest had been taken of the matter of ac- 
cusation ; and if they were found guilty, 
that their real and personal estate should 
be forfeited to the crown. In later times, 
the clerical privilege was not allowed till 
the party had pleaded to the endictment, 
and been duly convict, as is the practice 
at present.* 

The civil magistrates of France did not 
by any means exert themselves Less vjg. 
so vigorously for their emancipa- orous in 
tion. The same, or rather worse '''■^■"^'^• 
usurpations existed, and the same com- 
plaints were made, under Philip Augus- 
tus, St. Louis, and Philip the Bold ; but 
the laws of those sovereigns tend much 
more to confirm than to restrain eccle- 
siastical encroachments.! Some limita- 
tions were attempted by the secular 
courts ; and an historian gives us the 
terms of a confederacy among the French 
nobles, in 1246, binding themselves by 
oath not to permit the spiritual judges to 
take cognizance of any matter, except 
heresy, marriage, and usury. J Unfortu- 
nately, Louis IX. was almost as little 
disposed as Henry III. to shake off the 
yoke of ecclesiastical dominion. But 
other sovereigns in the same period, from 
various motives, were equally submis- 
sive. Frederick II. explicitly adopts the 
exemption of clerks from criminal as 



knowledged as a statute, though not drawn up in 
the form of one, is founded upon an answer of Ed- 
ward I. to the prelates who had petitioned for some 
modification of prohibitions. Collier, always prone 
to exaggerate church authority, insinuates that the 
jurisdiction of the spiritual court over breaches of 
contract, even without oath, is preserved by this 
statute ; but the express words of the king show 
that none whatever was intended ; and the arch- 
bishop complains bitterly of it afterward. — WiU 
kins. Concilia, t. ii., p. 118. Collier's Ecclesiast. 
History, vol. i., p. 487. So far from having any 
cognizance of civil contracts not confirmed by 
oath, to which I am not certain that the church, 
ever pretended in any country, the spiritual court 
had no jurisdiction at all even where an oath had 
intervened, unless there was a deficiency of proof 
by writing or witnesses. — Glanvil, 1. x., c. 12. 
Constitut. Clarendon., art. 15. 

* 2 Inst., p. 163. 

t It seems deducible from a law of Philip Au- 
gustus, Ordonnances des Rois, t. i., p. 30, that a 
clerk convicted of some heinous olTences might be 
capitally punished after degradation ; yet a subse- 
quent ordinance, p. 43, renders this doubtful ; and 
the theory of clerical immunity became afterward 
more fully established. 

X Matt. Pans, p. C29. 



Chap. VII.] 



ECCLESIASTICAL POWER 



301 



well as civil jurisdiction of seculars.* 
And Alfonso X. introduced the same sys- 
tem in Castile ; a kingdom where neither 
the papal authority nor the independence 
of the church had obtained any legal rec- 
ognition until the promulgation of his 
code, which teems with all the principles 
of the canon law.f It is almost needless 
to mention that all ecclesiastical powers 
and privileges were incorporated with 
the jurisprudence of the kingdom of Na- 
ples, which, especially after the acces- 
sion of the Angevin line, stood in a pe- 
culiar relation of dependance upon the 
Holy See.| 

The vast acquisitions of landed wealth 

Restraints '"^^^ ^°^ ""^"^ ^S*'^ ^J" bishops, 

on aiiena- chapters, and monasteries, began 
tions in at length to excite the jealousy 
mortmain. ^^ sovereigns. They perceived 
that, although the prelates might send 
their stipulated proportion of vassals into 
the field, yet there could not he that ac- 
tive co-operation which the spirit of feu- 
dal tenures required, and that the nation- 
al arm was palsied by the diminution of 
military nobles. Again, the reliefs upon 
succession, and similar dues upon aliena- 
tion, incidental to fiefs, were entirely lost 
when they came into the hands of these 
undying corporations, to the serious in- 
jury of the feudal superior. Nor could 
it escape reflecting men, during the con- 
test about investitures, that, if the church 
peremptorily denied the supremacy of the 
state over her temporal wealth, it was 
but a just measure of retaliation, or rather 
self-defence, that the state should restrain 
her further acquisitions. Prohibitions of 
gifts in mortmain, though unknown to 
the lavish devotion of the new kingdoms, 
had been established by some of the Ro- 



* Statuimus, ut nullus ecclesiasticam personam, 
in criminal! quasstione vel civili, trahere ad judici- 
um saeculare prsesumat. — Ordonnances des Rois de 
France, t. i., p. 611, where this edict is recited and 
approved by Louis Hutin. Phihp the Bold had 
obtained leave from the pope to arrest clerks ac- 
cused of heinous crimes, on condition of remittmg 
■ them to the bishop's court for trial. — Hist, du 
Droit. Eccl. Frang., t. i., p. 426. A council at 
Bourges, held in 1276, had so absolutely condemned 
all interference of the secular power with clerks, 
that the king was obliged to solicit this moderate 
favour, p. 421. 

t Marina, Ensayo Historico-Critico sobre las 
siete partidas, c. 320, &c. Hist, du Droit Eccl6s. 
Frang.. t. i., p. 442. 

t Giannone, 1. xix., c. v. ; 1. xx., c. 8. One provis- 
ion of Robert, king of Naples, is remarkable : it ex- 
lends the immunity of clerks to their concubines. 
—Ibid. 

Villani strongly censufes a law made at Flor- 
ence, in 1345, taking away the personal immunity 
of clerks in criminal cases. Though the state could 
make such a law, he says, it had no right to do so 
against the liberties of holy church, 1. xii., c. 43. 



man emperors, to check the overgrown 
wealth of the hierarchy.* The first at- 
tempt at a limitation of this description 
in modern times was made by Frederick 
Barbarossa, who, in 1158, enacted that no 
fief should be transferred either to the 
church or otherwise, without the permis- 
sion of the superior lord. Louis IX. in- 
serted a provision of the same kind in his 
establishments.! Castile had also laws of 
a similar tendency. J A license from the 
crown is said to have been necessary in 
England before the conquest for aliena- 
tions in mortmain ; but, however that may 
be, there seems no reason to imagine 
that any restraint was put upon them by 
the common law before Magna Charta ; 
a clause of which statute was construed 
to prohibit all gifts to religious houses 
without the consent of the lord of the fee. 
And by the 7th Edward I., alienations in 
mortmain are absolutely taken away; 
though the king might always exercise 
his prerogative of granting a license, 
which was not supposed to be effected by 
the statute.^ 

It must appear, I think, to every care- 
ful inquirer, that the papal author- Boniface 
ity, though manifesting outward- ^'•i- 
ly more show of strength every year, had 
been secretly undermined, and lost a 
great deal of its hold upon public opinion, 
before the accession of Boniface VIII., 
in 1294, to the pontifical throne. The 
clergy were rendered sullen by demands 
of money, invasions of the legal right of 
patronage, and unreasonable partiality to 
the mendicant orders ; a part of the men- 
dicants themselves had begun to de- 
claim against the corruptions of the pa- 
pal court ; while the laity, subjects alike 
and sovereigns, looked upon both the 
head and the members of the hierarchy 
with jealousy and dislike. Boniface, full 
of inordinate arrogance and ambition, 
and not sufficiently sensible of this grad- 
ual change in human opinion, endeavour- 
ed to strain to a higher pitch the despot- 
ic pretensions of former pontiffs. Aa 
Gregory VII. appears the most usurping 
of mankind till we read the history of In- 
nocent III., so Innocent III. is thrown 
into shade by the superior audacity of 
Boniface VIII. But independently of the 
less favourable dispositions of the public, 
he wanted the most essential quality for 
an ambitious pope, reputation for integri- 



* Giannone, 1. iii. 

+ Ordonnances des Rois, p. 213. See too p. 303 
and alibi. Du Cange, v. Manus morta. A7nortis- 
siment, in Denisart, and other French law-books. 
Fleury, Instit. au Droit., t. i., p. 350. 

t Marina, Ensayo sobre las siete partidas, c. 235. 

\ 2 Inst., p. 74. Blackstone, vol. ii., c. 18. 



302 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



ty. He was suspected of having procu- 
red through fraud the resignation of his 
predecessor Celestine V., and liis harsh 
treatment of that worthy man afterward 
seems to justify the reproach. His ac- 
tions, however, display the intoxication 
of extreme self-confidence. If we may 
credit some historians, he appeared at 
the Jubilee in 1300, a festival successful- 
ly instituted by himself to throw lustre 
around his court and fill his treasury,* 
dressed in imperial habits, with the two 
swords borne before him, emblems of his 
temporal as well as spiritual dominion 
over the earth. f 

It was not long after his elevation to 
Ills disputes the pontificate before Boniface 
wiih the displayed his temper. The two 
King of most powerful sovereigns of 

England „ nuv ^i, t-i • j t^j 

Europe, Philip the Fair and Ed- 
ward the First, began at the same mo- 
ment to attack in a very arbitrary man- 
ner the revenues of the church. The Eng- 
lish clergy had, by their own voluntary 
grants, or at least those of the prelates 
in their name, paid frequent subsidies to 
the crown, from the beginning of the 
reign of Henry HI. They had nearly, in 
effect, waived the ancient exemption, and 
retained only the common privilege of 
English freemen to tax themselves in a 
constitutional manner. But Edward I. 
came upon them with demands so fre- 
quent and exorbitant, that they were com- 
pelled to take advantage of a bull issued 
by Boniface, forbidding them to pay any 
contribution to the state. The king dis- 
regarded every pretext, and, seizing their 
goods into his hands, with other tyran- 
nical proceedings, ultimately forced them 
to acquiesce in his extortion. It is re- 
markable, that the pope appears to have 
been passive throughout this contest of 
Edward I. with his clergy. But it was 
And of far otherwise in France. Philip 
France, the Fair had imposed a tax on the 



* The Jubilee was a centenary commemoration, 
in honour of St. Peter and St. Paul, established 
by Boniface VIII. on the faith of an imaginary pre- 
cedent a century before. The period was soon re- 
duced to fifty years, and from thence to twenty- 
five, as it still continues. The court of Rome, at 
the next jubilee, will, however, read with a sigh the 
description given of that in 1300. Papa innumera- 
bilem pecuniam ab iisdem recepit, quia die et nocte 
duo clerici stabant ad altare Sancti Pauli, tenentes 
in eorum manibus rastellos, rastellantes pecnniam 
inhnitam. — Muratori. Plenary indulgences were 
granted by Boniface to all who should keep their 
jubilee at Rome, and I suppose are still to be had 
on the same terms. Matteo Villam gives a curi- 
ous account of the throng at Rome in 1350. 

t Giannone, 1. xxi., c. 3. Velly, t. vii., p. 149. 
I have not observed any good authority referred to 
for this fact, which is however in the character of 
Boniface. 



ecclesiastical order without their consent, 
a measure perhaps unprecedented, yet 
not more odious than the similar exac- 
tions of the King of England. Irritated 
by some previous differences, the pope 
issued his bull, known by the initial words 
Clericis laicos, absolutely forbidding the 
clergy of every kingdom to pay, under 
whatever pretext of voluntary grant, gift, 
or loan, any sort of tribute to their gov- 
ernment without his especial permission. 
Though France was not particularly na- 
med, the king understood himself to be 
intended, and took his revenge by a pro- 
hibition to export money from the king 
dom. This produced angry remonstran- 
ces on the part of Boniface ; but the Gal- 
ilean church adhered so faithfully to the 
crown, and showed indeed so much wil- 
lingness to be spoiled of their money, that 
he could not insist upon the most unrea- 
sonable propositions of his bull, and ulti- 
mately allowed that the French clergy 
might assist their sovereign by voluntary 
contributions, though not by way of tax. 
For a very few years after these cir- 
cumstances, the pope and King of France 
appeared reconciled to each other ; and 
the latter even referred his disputes with 
Edward I. to the arbitration of Boniface, 
" as a private person, Benedict of Gaeta 
(his proper name), and not as pontiff;" an 
almost nugatory precaution against his 
encroachment upon temporal authority.* 
But a terrible storm broke out in the first 
year of the fourteenth century. A bish- 
op of Pamiers, who had been sent as le- 
gate from Boniface with some complaint, 
displayed so much insolence, and such 
disrespect towards the king, that Philip, 
considering him as his own subject, was 
provoked to put him under arrest with 
a view to institute a criminal process. 
Boniface, incensed beyond measure at 
this violation of ecclesiastical and lega- 
tine privileges, published several bulls 
addressed to the king and clergy of 



* Walt. Hemingford, p. 150. The award of 
Boniface, which he expresses himself to make both 
as pope and Benedict of Gaeta, is published in Ry- 
mer, t. ii., p. 819, and is very equitable. Never- 
theless, the French historians agree to charge him 
with partiality towards Edward, and mention sev- 
eral proofs of it, which do not appear in the bull it- 
self Previous to its publication, it was allowable 
enough to follow common fame ; but Velly, a wri- 
ter always careless and not always honest, has re- 
peated mere falsehoods from Mezeray and Baillet, 
while he refers to the instrument itself in Rymer, 
which disproves them. — Hist, de France, t. vii., p. 
139. M. Gaillard, one of the most candid critics in 
history that France ever produced, pointed out the 
error of her common historians in the Mem. de 
I'Academie des Inscriptions, t. xxxix., p. 642 ; and 
the editors of L'Art de verifier les Dates have also 
rectified it 



Chap. VII.] 



ECCLESIASTICAL POWER. 



303 



France, charging the former with a vari- 
ety of offences, some of them not at all 
concerning the church, and commanding 
the latter to attend a council which he 
had summoned to meet at Rome. In one 
of these instruments, the genuineness of 
which does not seem liable to much ex- 
ception, he declares in concise and clear 
terms that the king was subject to him in 
temporal as well as spiritual matters. 
This proposition had not hitherto been 
explicitly advanced, and it was now too 
late to advance it. Philip replied by a 
short letter in the rudest language, and 
ordered his bulls to be publicly burnt at 
Paris. Determined, however, to show 
the real strength of his opposition, he 
summoned representatives from the three 
orders of his kingdom. This is common- 
y reckoned the first assembly of the 
States-General. The nobility and com- 
mons disclaimed with firmness the tem- 
poral authority of the pope, and conveyed 
their sentiments to Rome through letters 
addressed to the college of cardinals. 
The clergy endeavoured to steer a mid- 
dle course, and were reluctant to enter 
into an engagement not to obey the 
pope's summons ; yet they did not hesi- 
tate unequivocally to deny his temporal 
jurisdiction. 

The council, however, opened at Rome ; 
and, notwithstanding the king's absolute 
prohibition, many French prelates held 
themselves bound to be present. In this 
assembly Boniface promulgated his fa- 
mous constitution, denominated Unam 
Sanctam. The church is one body, he 
therein declares, and has one head. Un- 
der its command are two swords, the one 
spiritual, and the other temporal ; that to 
be used by the supreme pontiff himself; 
this by kings and knights, by his license, 
and at his will. But the lesser sword 
must be subject to the greater, and the 
temporal to the spiritual authority. He 
concludes by declaring the subjection of 
every human being to the See of Rome 
to be an article of necessary faith.* An- 
other bull pronounces all persons of what- 
ever rank obliged to appear when person- 
ally cited before the audience or apostol- 
ical tribunal of Rome ; " since such is our 
pleasure, who, by divine permission, rule 

* Uterqiie est in potestate ecclesiaj, spiritalis, 
scilicet gladius et materialis. Sed is quidem pro 
ecclesia, ille vero ab ecclesia exercendus : ille sa- 
cerdotis, is manu regum ac militum, sed ad nutum 
et patientiain sacerdotis. Oportet autcm gladinin 
esse sub gladio, et temporalein aiictoritatem spiri- 
tali subjici potestati. Porro subesse Romano pon- 
tifici oiiini humanse creaturae declaramus, dicimus, 
definimiis et pronunciamns omnino esse de neces- 
sitate fidei. — Extravagant., 1. i., tit. viii., c. 1. 



the world." Finally, as tlie rupture with 
Philip grew more evidently irreconcila- 
ble, and the measures pursued by that 
monarch more hostile, he not only ex- 
communicated him, but offered the crown 
of France to the EmperorAlbert I. This 
arbitrary transference of kingdoms was, 
like many other pretensions of that age, 
an improvement upon the right of depo- 
sing excommunicated sovereigns. Greg- 
ory VII. would not have denied that a 
nation, released by his authority from its 
allegiance, must re-enter upon its origi- 
nal right of electing a new sovereign. But 
Martin IV. had assigned the crown of Ar- 
agon to Charles of Valois ; the first in- 
stance, I think, of such a usurpation of 
power, but which was defended by the 
homage of Peter II., who had rendered 
his kingdom feudally dependant, like Na- 
ples, upon the Holy See.* Albert felt no 
eagerness to realize the liberal promises 
of Boniface ; who was on the point of is- 
suing a bull, absolving the subjects of 
Philip from their allegiance, and declaring 
his forfeiture, when a very unexpected 
circumstance interrupted all his projects. 
It is not surprising, when we consider 
how unaccustomed men were in those 
ages to disentangle the artful sophisms, 
and detect the falsehoods in point of fact, 
whereon the papal supremacy had been 
established, that the King of France 
should not have altogether pursued the 
course most becoming his dignity and the 
goodness of his cause. He gave too 
much the air of a personal quarrel with 
Boniface to what should have been a res- 
olute opposition to the despotism of 
Rome. Accordingly, in an assembly of 
his states at Paris, he preferred virulent 
charges against the pope, denying him to 
have been legitimately elected, imputing 
to him various heresies, and ultimately 
appealing to a general council and a law- 
ful head of the church. These measures 
were not very happily planned : and ex- 



* Innocent IV. had, however, in 1245, appointed 
one Bolon, brother to Sancho II., king of Portugal, 
to be a sort of coadjutor in the government of 
that kingdom, enjoining the barons to honour him 
as their sovereign, at the same tnne declarincr that 
he did not intend to deprive the king, or his lawful 
issue, if he should have any, of the kingdom. But 
this was founded on the request of the Portuguese 
nobility themselves, who were dissatisfied with 
Sancho's administration.— Sext. Decretal., 1. i., tit. 
viii., c. 2. Art de Verifier les Dates, t. i.,p. 778. 

Boniface invested James II. of Aragon with the 
crown of Sardinia, over which, however, the Sea 
of Rome had always pretended to a superiority by 
virtue of the concession (probably spurious) of Lou 
is the Debonair. He promised Frederick, king of 
Sicily, the empire of Constantinople, which, I sup 
nose, was not a fief of the Holy See. — Giannone 
I. xxi., c. 3. 



304 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIL 



penence had always shown, that Europe 
would not submit to change the common 
chief of her religion for the purposes of 
a single sovereign. But Phihp succeed- 
ed in an attempt apparently more bold 
and singular. Nogaret, a minister who 
had taken an active share in all the pro- 
ceedings against Boniface, was secretly 
despatched into Italy, and, joining with 
some of the Colonna family, proscribed 
as Ghibelins, and rancorously persecuted 
by the pope, arrested him at Anagnia, a 
town in the neighbourhood of Rome, to 
which he had gone without guards. This 
violent action was not, one would ima- 
gine, calculated to place the king in an 
advantageous light ; yet it led accidental- 
ly to a favourable termination of his dis- 
pute. Boniface was soon rescued by the 
inhabitants of Anagnia ; but rage brought 
on a fever, which ended in his death ; and 
the first act of his successor, Benedict 
XI., was to reconcile the King of France 
to the Holy See.* 

The sensible decline of the papacy is 
to be dated from the pontificate of Bon- 
iface VIII., who had strained its author- 
ity to a higher pitch than any of his pre- 
decessors. There is a spell wrought by 
uninterrupted good fortune, which cap- 
tivates men's understanding, and per- 
suades them, against reasoning and anal- 
ogy, that violent power is immortal and 
irresistible. The spell is broken by the 
first change of success. We have seen 
the working and the dissipation of this 
charm with a rapidity to which the events 
of former times bear as remote a rela- 
tion as the gradual processes of nature to 
her deluges and her volcanoes. In tra- 
cing the papal empire over mankind, we 
have no such marked and definite crisis 
of revolution. But slowly, like the re- 
treat of waters, or the stealthy pace of 
old age, that extraordinary power over 
human opinion has been subsiding for 
five centuries. I have already observed, 
that the symptoms of internal decay may 
be traced farther back. But as the re- 
trocession of the Roman terminus under 
Adrian gave the first overt proof of de- 
cline in the ambitious energies of that 
empire, so the tacit submission of the 
successors of Boniface VIII. to the King 
of France might have been hailed by 
Europe as a token that their influence 
was beginning to abate. Imprisoned, in- 
sulted, deprived eventually of life by the 
violence of Philip, a prince excommuni- 
cated, and who had gone all lengths in 

* Velly, Hist, de France, t. vii., p. 109-253. Cre- 
vier, Hist, de rUniversit6 de Paris, t. ii., p. 170, 
6ic. 



defying and despising the papal jurisdic- 
tion, Boniface had every claim to be 
avenged by the inheritors of the same 
spiritual dominion. When Benedict XI, 
rescinded the bulls of his predecessor, 
and admitted Philip the Fair to comnm- 
nion without insisting on any concessions, 
lie acted perhaps prudently, but gave a 
fatal blow to the temporal authority of 
Rome. 

[A. D. 1305.] Benedict XI. lived but a 
few months, and his successor. Removal or 
Clement V., at the instigation, papal court 
as is commonly supposed, of '" -^^'g"""- 
the King of France, by whose influence 
he had been elected, took the extraordi- 
nary step of removing the papal chair to 
Avignon. In this city it remained for 
more than seventy years ; a period which 
Petrarch and other writers of Italy com- 
pare to that of the Babylonish captivity. 
The majority of the cardinals was always 
French, and the popes were uniformly 
of the same nation. Timidly dependant 
upon the court of France, they neglected 
the interests, and lost the affections of 
Italy. Rome, forsaken by her sovereign, 
nearly forgot her allegiance; what re- 
mained of papal authority in the ecclesi- 
astical territories was exercised by car- 
dinal legates, little to the honour or ad- 
vantage of the Holy See. Yet the series 
of Avignon pontiffs were far from in- 
sensible to Italian politics. These occu- 
pied, on the contrary, the greater part of 
their attention. But engaging in them 
from motives too manifestly selfish, and 
being regarded as a sort of foreigners 
from birth and residence, tliey aggra- 
vated that unpopularity and bad reputa- 
tion which from various other causes 
attached itself to their court. 

Though none of the supreme pontiffs 
after Boniface VIII. ventured _ . , 

, T x »■ Contest of 

upon such explicit assumptions popes with 
of a general jurisdiction over Louis of 
sovereigns by divine right as he i^"^**"*- 
had made in his controversy with Philip, 
they maintained one memorable struggle 
for temporal power against the Emperor 
Louis of Bavaria. Maxims long boldly 
repeated without contradiction, and in- 
grafted upon the canon law, passed al- 
most for articles of faith among the 
clergy, and those who trusted in them ; 
and, in despite of all ancient authorities, 
Clement V. laid it down, that the popes, 
having transferred the Roman empire 
from the Greeks to the Germans, and 
delegated the right of nominating an 
emperor to certain electors, still reserved 
the prerogative of approving the clioice, 
and of receiving from its subject upon his 



Chap. VII.] 



ECCLESIASTICAL POWER. 



305 



coronation an oath of fealty and obedi- 
ence.* This had a regard to Henry VII., 
who denied that his oath bore any such 
interpretation, and whose measures, much 
to the alarm of the court of Avignon, 
were directed towards the restoration of 
his imperial rights in Italy. Among other 
things, he conferred the rank of vicar of 
the empire upon Matteo Visconti, lord 
of Milan. The popes had for some time 
pretended to possess that vicariate, du- 
ring a vacancy of the empire ; and after 
Henry's death, insisted upon Visconti's 
surrender of the title. Several circum- 
stances, for which I refer to the political 
historians of Italy, produced a war be- 
tween the pope's legate and the Visconti 
family. The Emperor Louis sent assist- 
ance to the latter, as heads of the Ghib- 
elin or imperial party. This interference 
cost him above twenty years of trouble. 
John XXII., a man as passionate and 
ambitious as Boniface himself, immedi- 
ately published a bull, in which he assert- 
ed the right of administering the empire 
during its vacancy (even in Germany, as 
it seems from the generality of his ex- 
pression), as well as of deciding in a 
doubtful choice of the electors, to apper- 
tain to the Holy See; and commanded 
Louis to lay down his pretended author- 
ity, until the supreme jurisdiction should 
determine upon his election. Louis's 
election had indeed been questionable ; 
but that controversy was already settled 
in the field of Muhldorf, where he had 
obtained a victory over his competitor 
the Duke of Austria ; nor had the pope 
ever interfered to appease a civil war 
during several years that Germany had 
been internally distracted by the dispute. 
[A. D. 1323.] The emperor, not yielding 
to this peremptory order, was excommu- 
nicated ; his vassals were absolved from 
their oath of fealty, and all treaties of 
alliance between him and foreign princes 
annulled. Germany, however, remained 
firm ; and if Louis himself had manifest- 
ed more decision of mind and uniformity 
in his conduct, the court of Avignon must 
have signally failed in a contest, from 

* Romani principes, &c Romano ponti- 

fici, a quo approbationem personae ad imperialis 
celsitudinis apicem assumenda;, necnon unctionem, 
consecrationem et imperii coronam accipiunt, sua 
submittere capita non reputarunt indignum, seque 
illi et eidem ecclesiaj, qax a Grsecis iinperium tran- 
stulit in Germanos, et a quii ad certos eorum prin- 
cipes jus et potestas eligendi regem, in imperato- 
rem postmodum promovendum, pertinet, adstrin- 
gere vinculo juramenti, &c. — Clement., 1. ii., tit. ix. 
The terms of the oath, as recited in this constitu- 
tion, do not warrant the pope's interpretation, but 
imply only that the emperor shall be the advocate 
or defender of ihe church. 

u 



which it did not in fact come out very- 
successful. But while at one time he 
went intemperate lengths against John 
XXII., publishing scandalous accusations 
in an assembly of the citizens of Rome, 
and causing a Franciscan friar to be 
chosen in his room, after an irregular 
sentence of deposition, he was always 
anxious to negotiate terms of accommo- 
dation, to give up his own active parti- 
sans, and to make concessions the most 
derogatory to his independence and dig- 
nity. From John, indeed, he had nothing 
to expect ; but Benedict XII. would gladly 
have been reconciled, if he had not feared 
the kings of France and Naples, political 
adversaries of the emperor, who kept 
the Avignon popes in a sort of servitude. 
His successor, Clement VI., inherited the 
implacable animosity of John XXII. to- 
wards Louis, who died without obtaining 
the absolution he had long abjectly soli- 
cited.* 

Though the want of firmness in this 
emperor's character gave some- „ . , 

t- * ^ • u ^ Spirit of re- 

tunes a momentary triumph to sistance to 
the popes, it is evident that their I'^pa' "*"' 
authority lost ground during the P^"°"^ 
continuance of this struggle. Their right 
of confirming imperial elections was ex- 
pressly denied by a diet held at Frank- 
fort, in 1338, which established as a fun- 
damental principle that the imperial dig- 
nity depended upon God alone, and that 
whoever should be chosen by a majority 
of the electors became immediately both 
king and emperor, with all prerogatives 
of that station, and did not require the 
approbation of the pope.f This law, con- 
firmed as it was by subsequent usage, 
emancipated the German empire, which 
was immediately concerned in opposing 
the papal claims. But some who were 
actively engaged in these transactions 
took more extensive views, and assailed 
the whole edifice of temporal power 
which the Roman see had been con- 
structing for more than two centuries 



* Schmidt, Hist, des Allemands, t. iv., p. 446, 
536, seems the best modern authority for this con- 
test between the empire and papacy. — See also 
Struvius. Corp. Hist. German., p. 591. 

t Quod imperialis dignitas et potestas immediate 
ex solo Deo, et quod de jure et imperii consuetudi- 
ne antiquitus approbata postquam aliquis eligitur 
in imperatorem sive regem ab electonbus imperii 
concorditer, vel majori parte eorundera, statim ex 
sola electione est re.\ verus et imperator Roman- 
orum censendus et nominandus, et eidem debet ab 
omnibus imperio subjectis obediri, etadministrandi 
jura imperii, et ca;tera faciendi, quae ad imperato- 
rem verum pertinent, plenariam habet polestatem, 
nee Papae sive sedis apostolicaj aut alicujus alteri- 
us approbatione, confirmatione, auctoritate indiget 
vel consensu. — Schmidt, p. 513. 



306 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII 



Several men of learning, among whom 
Dante, Ockham, and Marsilins of Padua, 
are the most conspicuous, investigated 
the foundations of this superstructure, 
and exposed their insufficiency.* Liter- 
ature, too long the passive handmaid of 
spiritual despotism, began to assert her 
nobler birthright of ministering to liberty 
and truth. Though the writings of tliese 
opponents of Rome are not always rea- 
soned upon very solid principles, they at 
least taught mankind to scrutinize what 
had been received with implicit respect, 
and prepared the way for more philosoph- 
ical discussions. About this time a new 
class of enemies had unexpectedly risen 
up against the rulers of the church. 
These were a part of the Franciscan or- 
der, who had seceded from the main 
body on account of alleged deviations 
from the rigour of their primitive rule. 
Their schism was chiefly founded upon 
a quibble about the right of property in 
things consumable, which they maintain- 
ed to be incompatible with the absolute 
poverty prescribed to them. This friv- 
olous sophistry was united with the wild- 
est fanaticism ; and as John XXII. at- 
tempted to repress their follies by a cruel 
persecution, they proclaimed aloud the 
corruption of the church, fixed the name 
of antichrist upon the papacy, and warm- 
ly supported the Emperor Louis through- 
out all his contention with the Holy See.f 
Meanwhile the popes who sat at Avig- 
Rapacity of "^'^ Continued to invade with 
Avignon surprising rapaciousness the 
popes. patronage and revenues of the 
church. The mandats or letters directing 
a particular clerk to be preferred seems 
to have given place in a great degree to 
the more eflfectual method of appropria- 
ting benefices by reservation or provis- 
ion, which was carried to an enormous 
extent in the fourteenth century. John 
XXII., the most insatiate of pontiffs, re- 



* Giannone, 1. xxii., c. 8. Schmidt, t. vi., p. 152. 
Dante was dead before these events, but his prin- 
ciples were the same. Ockham had already ex- 
erted his talents in the same cause by writing, in 
behalf of Philip IV. against Boniface, a dialogue 
between a knight and a clerk on the temporal su- 
premacy of the church. This is published among 
other tracts of the same class in Goldastus, Monar- 
chia Imperii, p. 13. This dialogue is translated 
entire in the Songe du Vergier, a more celebrated 
performance, ascribed to Raoul de Presles under 
Charles V. 

t The schism of the rigid Franciscans or Fratri- 
celli is one of the most singular parts of ecclesias- 
tical history, and had a material tendency both to 
depress the temporal authority of the papacy, and 
to pave the way for the Reformation. It is fully 
treated by Mosheim, cent. 13 and 11 ; and by Cre- 
vier, Hist, de lUniversit^ de Paris, t. ii., p. 233- 
264, &c. 



served to himself all the bishoprics in 
Christendom.* Benedict XII. assumed 
the privilege for his own life of disposing 
of all benefices vacant by cession, depri- 
vation, or translation. Clement VI. nat- * 
urally thought that his title was equally 
good with his predecessor's, and contin- 
ued the same right for his own time ; 
which soon became a permanent rule of 
the Roman chancery. f Hence the ap- 
pointment of a prelate to a rich bishopric 
was generally but the first link in a chain 
of translation, which the pope could reg- 
ulate according to his interest. Another 
capital innovation was made by John 
XXII. in the establishment of the famous 
tax called annates, or first fruits of ec- 
clesiastical benefices, which he imposed 
for his own benefit. These were one 
year's value, estimated according to a 
fixed rate in the books of the Roman 
chancery, and payable to the papal col- 
lectors throughout Europe. J Various 
other devices were invented to obtain 
money, which these degenerate popes, 
abandoning the magnificent schemes of 
their predecessors, were content to seek 
as their principal object. John XXII. is 
said to have accumulated an almost in- 
credible treasure, exaggerated perhaps 
by the ill-will of his contemporaries ;^ 
but it may be doubted whether even his 
avarice reflected greater dishonour on 
the church than the licentious profuse- 
ness of Clement VI. || 

These exactions were too much en- 
couraged by the kings of France, who 
participated in the plunder, or at least re- 
quired the mutual assistance of the popes 
for their own imposts on the clergy. 
John XXII. obtained leave of Charles 

* Fleury, Institutions, &.C., t.i., p. 368. F. Paul 
on Benefices, c. 37. 

t F. Paul, c. 38. Translations of bishops had 
been made by the authority of the metropolitan, 
till Innocent III. reserved this prerogative to the 
Holy See. — De Marca, 1. vi., c. 8. 

t F. Paul, c. 38. Fleury, p. 424. De Marca, 1. 
vi., c. 10. Pasquier, 1. iii., c. 28. The popes had 
long beeii in the habit of receiving a pecuniary gra- 
tuity when they granted the pallium to an archbish- 
op, though this was reprehended by strict men, and 
even condemned by themselves. — De Marca, ibid. 
It is noticed as a remarkable thing of Innocent IV., 
that he gave the pall to a German archbishop 
without accepting any thing. — Schmidt, t. iv., p, 
172. The original and nature of annates is co- 
piously treated in Lenfant, Concile de Constance, 
t. ii., p. 133. 

() G. Villani puts this at 25,000,000 of florins, 
which it is hardly possible to believe. The Ital- 
ians were credulous enough to listen to any report 
against the popes of Avignon.— L. xi., c. 20. Gian- 
none, 1. xxii., c. 8. 

II For the corruption of morals at Avignon during 
the secession, see De Sade, Vie de Petrarquc, • 
i., p. 70, and several other passages. 



CflAP. VII.] 



ECCLESIASTICAL POWER. 



307 



the Fair to levy a tenth of ecclesiastical 
revenues;* and Clement VI., in return, 
granted two tenths to Philip of Valois 
for the expenses of his Avar. A similar 
tax was raised by the same authority 
towards the ransom of John.f These 
were contributions for national purposes 
unconnected with religion, which the 
popes had never before pretended to 
impose, and which the king might prop- 
erly have levied with the consent of his 
clergy, according to the practice of Eng- 
land. But that consent might not always 
be obtained with ease, and it seemed a 
more expeditious method to call in the 
authority of the pope. A manlier spirit 
Avas displayed by our ancestors. It was 
the boast of England to have placed the 
first legal barrier to the usurpations of 
Rome, if we except the dubious and insu- 
lated Pragmatic Sanction of St. Louis, 
from which the practice of succeeding 
ages in France entirely deviate. The 
English barons had, in a letter addressed 
to Boniface VIII., absolutely disclaimed 
his temporal supremacy over their crown, 
which he had attempted to set up by in- 
termeddling in the quarrel of Scotland. J 
This letter, it is remarkable, is nearly 
co-incident in point of time with that of 
the French nobility ; and the two com- 
bined may be considered as a joint pro- 
testation of both kingdoms, and a testi- 
mony to the general sentiment among 
the superior ranks of the laity. A very 
few years afterward, the parliament of 
Carlisle WTOte a strong remonstrance to 
Clement V. against the system of pro- 
visions and other extortions, including 
that of first fruits, which it was rumour- 
ed, they say, he was meditating to de- 
mand.^ But the court of Avignon was 
not to be moved by remonstrances ; and 
the feeble administration of Edward II. 
gave way to ecclesiastical usurpations at 
home as well as abroad. || His magnani- 
mous son took a bolder line. After com- 



♦ Continuator Gul. de Nangis, in Spicilegio 
d'Acher)% t. iii., p. 86 (folio ed.), ita miseram eccle- 
siam, says this monk, unus tondet, alter excoriat. 

t Fleury, Institut. au Droit eccl^siastique, t. ii., 
p. 245. Villaret, t. ix., p. 431. It became a regular 
practice for the king to obtain the pope's consent 
to lay a tax on his clergy ; though he sometimes 
applied first to themselves. — Gamier, t. xx., p. 141. 

% Rymer, t. ii., p. 373. Collier, vol. i., p. 725. 

^ Roluli Parliamenti, vol. i., p. 204. This pas- 
sage, hastily read, has led Collier and other English 
writers, such as Henry and Blackstone, into the 
supposition that annates were imposed by Clem- 
ent V. But the concurrent testimony of foreign 
authors refers this tax to John XXII., as the canon 
law also shows. — Extravagant. Communes, 1. iii., 
tit. ii., c. 11. 

II The statute called Articuli cleri, in 1316, was 
U8 



plaining ineffectually to Clement VI. of 
the enormous abuse which reserved 
almost all English benefices to the pope, 
and generally for the benefit of aliens,* 
he passed iia 1350 the famous statute of 
provisors. This act, reciting one suppo- 
sed to have been made at the parliament 
of Carlisle, which, however, does not ap- 
pear,! ^nd complaining in strong language 
of the mischief sustained through con- 
tinual reservations of benefices, enacts 
that all elections and collations shall be 
free, according to law, and that, in case 
any provision or reservation should be 
made by the court of Rome, the king 
should for that turn have the collation 
of such benefice, if it be of ecclesiastical 
election or patronage. J This devolution 
to the crown, which seems a little arbi- 
trary, was the only remedy that could be 
effectual against the connivance and ti- 
midity of chapters and spiritual patrons. 
We cannot assert that a statute so nobly 
planned was executed with equal stead- 
iness. Sometimes by royal dispensa- 
tion, sometimes by neglect or evasion, 
the papal bulls of provision were still 
obeyed, though fresh laws were enacted 
to the same effect as the former. It was 
found on examination in 13G7, that some 
clerks enjoyed more than twenty benefi- 
ces by the pope's dispensation.^ And 
the parliaments both of this and of Rich- 
ard II. 's reign invariably complain of the 
disregard shown to the statutes of provi- 
sors. This led to other measures, which 
I shall presently mention. 

The residence of the popes at Avignon 
gave very general offence to Eu- Rg,um of 
rope, and they could not them- Popes to 
selves avoid perceiving the dis- Kome. 
advantage of absence from their proper 
diocess, the city of St. Peter, the source 
of all their claims to sovereign authority. 
But Rome, so long abandoned, offered 
but an inhospitable reception ; Urban V. 

directed rather towards confirming than limiting 
the clerical immunity in criminal cases. 

* Collier, p. 546. 

t It is singular that Sir E. Coke should assert 
that this act recites, and is founded upon the stat- 
ute 35 E. I., De asportatis religiosorum (2 Inst., 
580) ; whereas there is not the least resemblance 
in the words, and very little, if any, in the sub- 
stance. Blackstone, inconsequence, mistakes the 
nature of that act of Edward I., and supposes it 
to have been made against papal provisions, to 
which I do not perceive even an allusion. Whether 
any such statute was really made in the Carlisle 
parliament of 35 E. I., as is asserted both in 
25 E. 111., and in the roll of another parliament, 
17 E. 111. (Rot. Pari., t. ii., p. 144), is hard to de- 
cide ; and perhaps those who examine this point 
will have to choose between wilful suppression 
and wilful interpolation, 

t 25 E. III., Stat. 6. ^ Collier, p. 568. 



808 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Ylh 



returned to Avignon, after a short exper- 
iment of the capital ; and it was not till 
1376 that the promise, often repeated 
and long delayed, of restoring the papal 
chair to the metropolis of Christendom, 
was ultimately fulfilled by Gregory XI. 
His death, which happened soon after- 
ward, prevented, it is said, a second 
flight that he was preparing. This was 
followed by the great schism, one of the 
most remarkable events in ecclesiastical 
history. It is a difficult and by no means 
Contested an interesting question to deter- 
iirban v'l'^ mine the validity of that contest- 
and cie- ' ed election which distracted the 
ment VII. Latin church for so many years. 
[A. D. 1377.] All contemporary testimo- 
nies are subject to the suspicion of partial- 
itj' in a cause where no one was permitted 
to be neutral. In one fact, however, there 
is a common agreement, that the cardinals, 
of whom the majority were French, hav- 
ing assembled in conclave for the elec- 
tion of a successor to Gregory XI., were 
disturbed by a tumultuous populace, who 
demanded with menaces a Roman, or, at 
least, an Italian pope. This tumult ap- 
pears to have been sufficiently violent to 
excuse, and in fact did produce, a con- 
siderable degree of intimidation. After 
some time, the cardinals made choice of 
the Archbishop of Bari, a Neapolitan, who 
assumed the name of Urban VI. His 
election satisfied the populace, and tran- 
quillity was restored. The cardinals an- 
nounced their choice to the absent mem- 
bers of their college, and behaved to- 
wards Urban as their pope for several 
weeks. But his uncommon harshness 
of temper giving them offence, they 
withdrew to a neighbouring town, and 
protesting that his election had been 
compelled by the violence of the Roman 
populace, annulled the whole proceeding, 
and chose one of their own number, who 
took the pontifical name of Clement VII. 
Such are the leading circumstances which 
produced the famous schism. Constraint 
is so destructive of the essence of elec- 
tion, that suff'rages given through actual 
intimidation ought, I think, to be held in- 
valid, even Avithout minutely inquiring 
whether the degree of illegal force was 
such as might reasonably overcome the 
constancy of a firm mind. It is improb- 
able that the free votes of the cardinals 
would have been bestowed on the Arch- 
bishop of Bari ; and I should not feel 
much hesitation in pronouncing his elec- 
tion to have been void. But the sacred 
college unquestionably did not use the 
earliest opportunity of protesting against 
the violence they had sufTered; and we 



may infer almost with certainty, that if 
Urban's conduct had been more accepta- 
ble to that body, the world wonld have 
heard little of the transient riot at his 
election. This however opens a deli- 
cate question in jurisprudence ; namely, 
under what circumstance acts, not only 
irregular, but substantially invalid, are 
capable of receiving a retro-active con- 
firmation by the acquiescence and ac- 
knowledgment of parties concerned to 
oppose them. And upon this, I con- 
ceive, the great problem of legitimacy 
between Urban and Clement will be 
found to depend.* 

Whatever posterity may have judged 
about the pretensions of these The Greai 
competitors, they at that time schism. 
shared the obedience of Europe in near- 
ly equal proportions. Urban remained at 
Rome ; Clement resumed the station of 
Avignon. To the former adhered Italy, 
the empire, England, and the nations of 
the north ; the latter retained in his alle- 
giance France, Spain, Scotland, and Si- 
cily. Fortunately for the church, no 
question of religious faith intermixed it- 
self with this schism ; nor did any other 
impediment to reunion exist, than the 
obstinacy and selfishness of the contend- 
ing parties. As it was impossible to 
come to any agreement on the original 
merits, there seemed to be no means of 
healing the wound but by the abdication 
of both popes and a fresh undisputed 
election. This was the general wish of 
Europe, but urged with particular zeal by 
the court of France, and, above all, by the 
university of Paris, which esteems this 
period the most honourable in her annals. 
The cardinals however of neither obedi- 
ence would recede so far from their par- 
ty as to suspend the election of a succes- 
sor upon a vacancy of the pontificate, 
which would have at least removed one 
half of the obstacle. The Roman con- 
clave accordingly placed three pontiffs 
successively, Boniface IX., Innocent VI., 
and Gregory XII., in the seat of Urban 
VI. ; and the cardinals at Avignon, upon 
the death of Clement, in 1394, elected 
Benedict XIII. (Peter de Luna), famous 
for his inflexible obstinacy in prolonging 
the schism. He repeatedly promised to 



* Lenfant has collected all the original testimo- 
nies on both sides in the first book of his Concile 
de Pise. No positive decision has ever been made 
on the subject, but the Roman popes are numbered 
in the commonly received list, and those of Avignon 
are not. The modern Italian writers express no 
doubt about the legitimacy of Urban ; the French 
at most intimate that Clement's pretensions were 
not to be wholly rejected. But I am saying too 
much on a question so utterly unimportant. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



309 



sacrifice his dignity for the sake of union. 
But there was no subterfuge to which 
this crafty pontiff had not recourse in or- 
der to avoid compUance with his word, 
though importuned, threatened, and even 
besieged in his palace at Avignon. Fa- 
tigued by his evasions, France withdrew 
her obedience, and the Gallican church 
continued for a few years without ac- 
knowledging any supreme head. But this 
step, which was rather the measui-e of 
the university at Paris than of the nation, 
it seemed advisable to retract ; and Ben- 
edict was again obeyed, though France 
continued to urge his resignation. A 
second subtraction of obedience, or at 
least declaration of neutrality, was re- 
solved upon, as preparatory to the con- 
vocation of a general council. On the 
other hand, those who sat at Rome dis- 
played not less insincerity. Gregory 
XII. bound himself by oath on his acces- 
sion to abdicate when it should appear 
necessary. But while these rivals were 
loading each other with the mutual re- 
proach of schism, they drew on them- 
selves the suspicion of at least a virtual 
collusion in order to retain their respect- 
ive stations. At length the cardinals of 
both parties, wearied with so much dis- 
simulation, deserted their masters, and 
summoned a general council to meet at 
Pisa.* 

[A. D. 1409.] The council assembled at 
Council Pisa deposed both Gregory and 
of Pisa; Benedict, without deciding in any 
respect as to their pretensions, and elect- 
ed Alexander V. by its own supreme au- 
thority. This authority, however, was 
not universally recognised ; the schism, 
instead of being healed, became more 
desperate ; for, as Spain adhered firmly 
to Benedict, and Gregory was not with- 
out supporters, there were now three 
contending pontiffs in the church. A 
general council was still, however, the 
favourite, and indeed the sole remedy ; 
and John XXIII., successor of Alexander 
of Con- v., was reluctantly prevailed upon, 
stance; or perhaps trepanned into convo- 
king one to meet at Constance. [A. D. 
1414.] In this celebrated assembly he 
was himstlf deposed; a sentence which 
he incurred by that tenacious clinging to 
his dignity, after repeated promises to 
abdicate, which had already proved fatal 
to his competitors. The deposition of 
John, confessedly a legitimate pope, may 
strike us as an extraordinary measure. 
But, besides the opportunity it might af- 



* Villaret. Lenfant, Concile de Pise. Crevier, 
Hist, de rUniversite de Paris, t. ill. 



ford of restoring union, the council found 
a pretext for this sentence in his enor- 
mous vices, which indeed they seem to 
have taken upon common fame without 
any judicial process. The true motive, 
however, of their proceedings against 
him, was a desire to make a signal dis- 
play of a new system, which had rapidly 
gained ground, and wliich I may venture 
to call the whig principles of the Catholic 
church. A great question was at issue, 
whether the polity of that establishment 
should be an absolute, or an exceedingly 
limited monarchy. The papal tyranny, 
long endured and still increasing, had ex- 
cited an active spirit of reformation which 
the most distinguished ecclesiastics of 
France and other countries encouraged. 
They recurred, as far as their knowledge 
allowed, to a more primitive discipline 
than the canon law, and elevated the su- 
premacy of general councils. But in the 
formation of these they did not scruple 
to introduce material innovations. The 
bishops have usually been considered the 
sole members of ecclesiastical assem- 
blies. At Constance, however, sat and 
voted not only the chiefs of monasteries, 
but the ambassadors of all Christian 
princes, the deputies of universities, with 
a multitude of inferior theologians, and 
even doctors of law.* These were nat- 
urally accessible to the pride of sudden 
elevation, which enabled them to con- 
trol the strong, and humiliate the lofty. 
In addition to this, the adversaries of the 
court of Rome carried 'another not less 
important innovation. The Italian bish- 
ops, almost universally in the papal inter- 
ests, were so numerous, that, if suffrages 
had been taken by the head, their pre- 
ponderance would have impeded any 
measures of transalpine nations towards 
reformation. It was determined, there- 
fore, that the council should divide itself 
into four nations, the Italian, the German, 
the French, and the English ; each with 
equal rights, and that every proposition 
having been separately discussed, the 
majority of the four should prevail, f This 



*• Lenfant, Concile de Constance, t. i., p. 107 
(edit. f727). Crevier, t. iii., p. 405. It was agreed 
that the ambassadors could not vote upon articles 
of faith, but only on questions relating to the set- 
tlement of the church. But the second order of 
ecclesiastics were allowed to vote generally. 

t This separation of England, as a coequal limb 
of the council, gave great umbrage to the French, 
who mamtained that, like Denmark and Sweden, 
it ought to have been reckoned along with Germa- 
ny. The English deputies came down with a pro- 
fusion of authorities to prove the antiquity of their 
monarchy, for which they did not fail to pnt in re 
quisition the immeasurable pedigrees of Ireland. 
Joseph of Arimathea, who planted Christianity and 



310 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VII. 



revolutionary spirit was very unaccepta- 
ble to the cardinals, who submitted re- 
luctantly, and with a determination that 
did not prove altogether unavaiUng, to 
save their papal monarchy by a dexter- 
ous policy. They could not, however, 
prevent the famous resolutions of the 
fourth and fifth sessions, which declare 
that the council has received by divine 
right an authority to which every rank, 
even the papal, is obliged to submit, in 
matters of faith, in the extirpation of the 
present schism, and in the reformation of 
the church both in its head and its mem- 
bers ; and that every person, even a pope, 
who shall obstinately refuse to obey that 
council, or any other lawfully assembled, 
is liable to such punishment as shall be 
necessary.* These decrees are the great 
pillars of that moderate theory with re- 
spect to the papal authority which dis- 
tinguished the Galilean church, and is 
embraced, I presume, by almost all lay- 
men and the major part of ecclesiastics 
on this side of the Alps. They embar- 
rass the more popish churchmen as the 
Revolution does our English tories ; 
some boldly impugn the authority of the 
council of Constance, while others chi- 
cane upon the interpretation of its de- 
crees. Their practical importance is not, 
indeed, direct ; universal councils exist 
only in possibility ; but the acknowledg- 
ment of a possible authority paramount 
to the see of Rome has contributed, 
among other means, to check its usur- 
pations. 

The purpose for which these general 
councils had been required, next to that of 
healing the schism, was the reformation 
of abuses. All the rapacious exactions, 
all the scandalous venality of which Eu- 
rope had complained, while unquestioned 
pontiffs ruled at Avignon, appeared light 
in comparison of the practices of both 
rivals during the schism. Tenths repeat- 
edly levied upon the clergy, annates rig- 
orously exacted and enhanced by new 
valuations, fees annexed to the complica- 
ted formalities of the papal chancery, 
were the means by which each half of 
the church was compelled to reimburse 

his stick at Glastonbury, did his best to help the 
cause. The recent victory of Azincourt, I am in- 
clined to think, had more weight with the council. 
— Lenfant, t. ii., p. 46. 

At a time when a very different spirit prevailed, 
the English bishops under Henry II. and Henry 
III. had claimed as a right, that no more than four 
of their number should be summoned to a general 
council. — Hoveden, p. 320; Carte, vol. ii., p. 84. 
This was like boroughs praying to be released from 
Bending members to parliament. 

* Idem, p. 1G4. Crevier, t. iii., p. 417. 



its chief for the subtraction of the other's 
obedience. Boniface IX., one of the Ro- 
man line, whose fame is a little worse 
than that of his antagonists, made a gross 
traffic of his patronage ; selling the privi- 
leges of exemption from ordinary juris- 
diction, of holding benefices in commen- 
dam, and other dispensations invented for 
the benefit of the Holy See.* Nothing 
had been attempted at Pisa towards ref- 
ormation. At Constance the majority 
were ardent and severe ; the representa- 
tives of the French, German, and English 
churches met with a determined and, as 
we have seen, not always unsuccessful 
resolution to assert their ecclesiastical 
liberties. They appointed a committee 
of reformation, whose recommendations, 
if carried into effect, would have annihi- 
lated almost entirely that artfully con- 
structed machinery by which Rome had 
absorbed so much of the revenues and 
patronage of the church. But men in- 
terested in perpetuating these abuses, es- 
pecially the cardinals, improved the ad- 
vantages which a skilful government al- 
ways enjoys in playing against a popular 
assembly. They availed themselves of 
the jealousies arising out of the division 
of the council into nations, which exteri- 
or political circumstances had enhanced. 
France, then at war with England, whose 
pretensions to be counted as a fourth na- 
tion she had warmly disputed, and not 
well disposed towards the Emperor Si- 
gismund, joined with the Italians against 
the English and German members of the 
council in a matter of the utmost impor- 
tance, the immediate election of a pope 
before the articles of reformation should 
be finally concluded. These two nations, 
in return, united with the Italians to 
choose the Cardinal Colonna, against the 
advice of the French divines, who object- 
ed to any member of the sacred college. 
The court of Rome were gainers in both 
questions. Martin V., the new pope, 
soon evinced his determination to elude 
any substantial reform. After publishing 
a few constitutions tending to redress 
some of the abuses that had arisen during 
the schism, he contrived to make separate 
conventions with the several nations, and 
as soon as possible dissolved the council. f 
By one of the decrees passed at Con- 
stance, another general council was to be 

* Lenfant, Hist, du Concile de Pise, passim. 
Crevier, ViUaret, Schmidt, Collier. 

t Lenfant, Concile de Constance. The copious- 
ness as well as impartiality of this work justly ren- 
der it an almost exclusive authority. Crevier 
(Hist, de rUniversite de Paris, t. iii.) has given a 
good abridgment ; and Schmidt (Hist, des All* 
mands, .. v.) is worthy of attention. 



Chap. VII.] 



ECCLESIASTICAL POWER. 



311 



assembled in five years, a second at the 
end of seven more, and from that time a 
similar representation of the church was 
to meet every ten years. Martin V. ac- 
cordingly convoked a council at Pavia, 
which, on account of the plague, was 
transferred to Siena ; but nothing of im- 
portance was transacted by this assem- 
of Basle bly.* [A. D. 1433.] That which 
he summoned seven years after- 
ward to the city of Basle liad very differ- 
ent results. The pope, dying before the 
meeting of this council, was succeeded 
by Eugenius IV., who, anticipating the 
spirit of it? discussions, attempted to 
crush its independence in the outset by 
transferring the place of session to an 
Italian city. No point was reckoned so 
material in the contest between the 
popes md reformers, as whether a coun- 
cil should sit in Italy or beyond the Alps. 
The council of Basle began, as it pro- 
ceeded, in open enmity to the court of 
Romi. Eugenius, after several years 
had elapsed in more or less hostile dis- 
cusaons, exerted his prerogative of remo- 
ving the assembly to Ferrara, and from 
theice to Florence. For this he had a 
specious pretext in the negotiation, then 
apparently tending to a prosperous issue, 
fo) the reunion of the Greek church ; a 
triimph, however transitory, of which his 
cmncil at Florence obtained the glory. 
Oi the other hand, the assembly at Basle, 
tiougb- much weakened by the defection 
(f those who adhered to Eugenius, enter- 
ed into compacts with the Bohemian in- 
mrgents more essential to the interests 
of the church than any union with the 
Greeks, and completed the work begun 
at Constance by abohshing the annates, 
the reservations of benefices, and other 
abuses of papal authority. In this it re- 
ceived the approbation of most princes ; 
but when, provoked by the endeavours of 
the pope to frustrate its decrees, it pro- 
ceeded so far as to suspend and even to 
depose him, neither France nor Germany 
concurred in the sentence. Even the 
council of Constance had not absolutely 
asserted a right of deposing a lawful 
pope, except in case of heresy, though 
their conduct towards John could not 
otherwise be justified.f This question 



* Lenfant, Guerre des Hussites, t. i., p. 223. 

t The council of Basle endeavoured to evade this 
difficulty by declaring Eugenius a relapsed heretic. 
— Lenfant, Guerre des Hussites, t. ii., p. 9S. But 
as the church could discover no heresy in his disa- 
greement with that assembly, the sentence of de- 
position gained little strength by this previous de- 
cision. The bishops were unwilling to take this 
violent step against Eugenius ; but the minor theo. 



indeed of ecclesiastical public law seems 
to be still imdecided. The fathers of Basle 
acted however with greater intrepidity 
than discretion, and not perhaps sensible 
of the change that was taking place in 
public opinion, raised Amadeus, a retired 
duke of Savoy, to the pontifical dignity, 
by the name of Felix V. They thus re- 
newed the schism, and divided the obe- 
dience of the Catholic church for a few 
years. The empire, however, as well as 
France, observed a singidar and not very 
consistent neutrality respecting Eugenius 
as lawfid pope, and the assembly at Basle 
as a general council. England warmly 
supported Eugenius, and even adhered 
to his council at Florence ; Aragon and 
some countries of smaller note acknowl- 
edged Felix. But the partisans of Basle 
became every year weaker ; and Nicolas 
v., the successor of Eugenius, found no 
great difficidty in obtaining the cession of 
Felix, and terminating this schism. This 
victory of the court of Rome over the 
council of Basle nearly counterbalanced 
the disadvantageous events at Constance, 
and put an end to the project of fixing 
permanent limitations upon the head of 
the church by means of general coun- 
cils. Though the decree that prescribed 
the convocation of a council every 'ten 
years was still unrepealed, no absolute 
monarchs have ever more dreaded to 
meet the representatives of their people, 
than the Roman pontiffs have abhorred 
the name of those ecclesiastical synods ; 
once alone, and that with the utmost re- 
luctance, has the Catholic church been 
convoked since the council of Basle ; but 
the famous assembly to which I allude 
does not fall within the scope of my pres- 
ent undertaking.* 

It is a natural subject of speculation, 
what would have been the effects of these 
universal councils, which wei-e so popu- 
lar in the fifteenth century, if the decree 
passed at Constance for their periodical 
assembly had been regularly observed"? 
Many Catholic writers, of the moderate 
or cisalpine school, have lamented their 
disuse, and ascribed to it that irreparable 

logians, the democracy of the Catholic church, 
whose right of suffrage seems rather an anomalous 
infringement of episcopal authority, pressed itwitb 
much heat and rashness. See a curious passage 
on this subject in a speech of the Cardinal of Aries. 
— Lenfant, t. ii., p. 225. 

* There is not, Ibeheve, any sufficient history of 
the council of Basle. Lenfant designed to write it 
from the original acts, but, finding his health de 
cline, intermixed some rather imperfect notices of 
its transactions with his history of the Hussite war, 
which is commonly quoted under the title of His- 
tory of the Council of Basle. Schmidt, Crevier, 
Villaret, are still mv other autb »rities. 



312 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIL 



breach which the Reformation has made 
in the fabric of their church. But there 
is ahnost an absurdity in conceiving their 
permanent existence. What chyniistry 
could have kept united such heterogene- 
ous masses, furnished with every prin- 
ciple of mutual repulsion 1 Even in early 
times, when councils, though nominally 
general, were composed of the subjects 
of the Roman empire, they had been 
marked by violence and contradiction: 
what then couM have been expected 
from the delegates of independent king- 
doms, whose ecclesiastical pohty, what- 
ever may be said of the spiritual unity 
of the church, had long been far too inti- 
mately blended with that of the state, to 
admit of any general control without its 
assent T Nor, beyond the zeal, unques- 
tionably sincere, which animated their 
members, especially at Basle, for the ab- 
olition of papal abuses, is there any thing 
to praise in their conduct, or to regret 
in their cessation. The statesman, who 
dreaded the encroachments of priests upon 
the civil government, the Christian, who 
panted to see his rites and faith purified 
from the corruption of ages, found no 
hope of improvement in these councils. 
They took upon themselves the preten- 
sions of the popes whom they attempt- 
ed to supersede. By a decree of the fa- 
thers at Constance, all persons, including 
princes, who should oppose any obstacle 
to a journey undertaken by the Emperor 
Sigismund, in order to obtain the cession 
of Benedict, are declared excommuni- 
cated, and deprived of their dignities, 
whether secular or ecclesiastical.* Their 
condemnation of Huss and Jerome of 
Prague, and the scandalous breach of 
faith which they induced Sigismund to 
commit on that occasion, are notorious. 
But perliaps it is not equally so, that this 
celebrated assembly recognised by a 
solemn decree the flagitious principle 
which it had practised, declaring that 
Huss was unworthy, through his obsti- 
nate adherence to heresy, of any privi- 
lege ; nor ought any faith or promise to 
be kept with him, by natural, divine, or 
human law, to the prejudice of the Cath- 
olic religion.! It will be easy to esti- 

* Lenfant, t. i., p. 439. 

+ Nee aliqua sibi fides aut promissio, de jure 
natnrali, divino, et humaiio fuent in prejudichim 
Catholicffi fidei observanda. — Lenfant, t. i., p. 491. 

This proposition is the great disgrace of the 
council in the affair of Huss. But the violation 
of his safe-conduct being a famous event in eccle- 
siastical history, and which has been very much 
disputed with some degree of erroneous statement 
on both sides, it may be proper to give briefly an 
impartial summary. 1. Huss came to Constance 



mate the claims of this congress of theo- 
logians to our veneration, and to weigh the 
retrenchment of a few abuses against the 
formal sanction of an atrocious maxim. 

It was not, however, necessary for any 
government of tolerable energy to seek 
the reform of those abuses which affected 
the independence of national churches, 
and the integrity of their regular disci- 
pline, at the hands of a general council. 
Whatever difficulty there might be in 
overturning the principles founded on the 
decretals of Isidore, and sanctioned by the 
prescription of many centunes, the more 
flagrant enci-oachments of pipal tyraimy 
were fresh innovations, some within the 
actual generation, others easily to be 
traced up, and continually disputed. The 
principal European nations detemiined, 
with difl"erent degrees indeed of energy, 
to make a stand against the despotism 
of Rome. In this resistance England 
was not only the first engaged, but the 
most consistent ; her free parliameni pre- 
venting, as far as the times permtted, 
that wavering policy to which a court is 
liable. We have already seen tha a 
foundation was laid in the statute of fro- 
visors under Edward III. In the ii?xt 
reign, many other measures tending to 
repress the interference of Rome wye 
adopted ; especially the great statute ^f 
premunire, which subjects all persojs 
bringing papal bulls for translation (f 
bishops and other enumerated purpose 
into the kingdom to the penalties o" 



with a safe-conduct of the emperor, very looselj 
worded, and not directed to any individuals. — 
Lenfant, t. i., p. 59. 2. This pass, however, was 
binding upon the emperor himself, and was so 
considered by him, when he remonstrated against 
the arrest of Huss. — Id., p. 73, 83. 3. It was not 
binding on the council, who possessed no tempo- 
ral power, but had a right to decide upon the ques- 
tion of heresy. 4. It is not manifest by what civil 
authority Huss was arrested, nor can I determine 
how far the imperial safe-conduct was a legal pro- 
tection within the city of Constance. 5. Sigis- 
mund was persuaded to acquiesce in the capital 
punishment of Huss, and even to make it his own 
act (Lenfant, p. 409) ; by which he manifestly 
broke his engagement. 6. It is evident that in 
this he acted by the advice and sanction of the 
council, who thus became accessary to the guilt 
of his treachery. 

The great moral to be drawn from the story of 
John Huss's condemnation is, that no breach of 
faith can be excused hy our opinion of ill desert in 
the party, or by a narrow interpretation of our own 
engagements. Every capitulation ought to be con- 
strued favourably for the weaker side. In such 
cases it is emphatically true, that if the letter 
killeth, the spirit should give life. 

Gerson, the most eminent theologian of his age, 
and the coryphaeus of the party that opposed the 
transalpine principles, was deeply concerned in 
this atrocious buw ess. — Crevier, p. 432 



Chap. VII.] 



ECCLESIASTICAL POWER. 



313 



forfeiture and perpetual imprisonment.* 
This act received, and probably was de- 
signed to receive, a larger interpretation 
than its language appears to warrant. 
Combined with the statute of provisors, 
it put a stop to the pope's usurpation of 
patronage, which had empovenshed the 
church and kingdom of England for nearly 
two centuries. Several attempts were 
made to overthrow these enactments ; 
the first parliament of Henry IV. gave a 
very large power to the king over the 
statute of provisors, enabling him even 
to annul it at his pleasure. f This, how- 
ever, does not appear in the statute-book. 
Henry, indeed, like his predecessors, ex- 
ercised rather largely his prerogative of 
dispensing with the law against papal 
provisions ; a prerogative which, as to 
this point, was itself taken away by an 
act of his own, and another of his son 
Henry V.J But the statute always stood 
unrepealed ; and it is a satisfactory proof 
of the ecclesiastical supremacy of the 
legislature, that in the concordat made 
by Martin V. at the council of Constance 
with the English nation, we find no men- 
tion of reservation of benefices, of anna- 
tes, and the other principal grievances 
of that age ;^ our ancestors disdaining to 
accept by compromise with the pope any 
modification or even confirmation of their 
statute law. They had already restrain- 
ed another flagrant abuse, the increase 
of first fruits by Boniface IX. ; an act of 
Henry IV. forbidding any greater sum to 
be paid on that account than had been 
formerly accustomed. || 

It will appear evident to every person 
Influence of acquainted with the contempo- 
Wiciiffe's rary historians and the pro- 
tenets, ceedings of parliament, that be- 
sides partaking in the general resentment 
of Europe against the papal court, Eng- 
land was under the influence of a pecu- 
liar hostility to the clergy, arising from 
the dissemination of the principles of 
Wicliff'e.^ All ecclesiastical possessions 
were marked for spoliation by the system 

* 16 Ric. 11., c. 5. 

t Rot. Pari., vol. iii., p. 428. 

t 7 H. IV., c. 8 ; 3 H. V., c. 4. Martin V. pub- 
lished an angry bull against the " e.xecrable stat- 
ute" of pretnunire, enjoining Archbishop Chiche- 
ley to procure its repeal. — Collier, p. 653. Chi- 
cheley did all in his power ; but the commons were 
always inexorable on this head, p. 636 ; and the 
archbishop even incurred Martin's resentment by 
it.— Wilkins, Concilia, t. iii., p. 483. 

(J Lenfant, t. ii., p. 444. 1| 6 H. IV., c. L 

•f See, among many other passages, the articles 
exhibited by the Lollards to parliament against the 
ctergy, in 1394. Collier gives the substance of 
them, and they are noticed by Henry : but they 
are at full length in Wilkins, t. iii., p. 221. 



of this reformer ; and the House of Com- 
mons more than once endeavoured to 
carry it into efl'ect, pressing Henry IV. 
to seize the temporalities of the church 
for public exigences.* This recommend- 
ation, besides its injustice, was not likely 
to move Henry, whose policy had been 
to sustain the prelacy against their new 
adversaries. Ecclesiastical jurisdiction 
was kept in belter control than former- 
ly by the judges of common law, who, 
through rather a strained construction of 
the statute of premunire, extended its 
penalties to the spiritual courts when 
they transgressed their limits. f The 
privilege of clergy in criminal cases still 
remained ; but it was acknowledged not 
to comprehend high treason.^ 

Germany, as well as England, was dis- 
appointed of her hopes of gen- concordata 
eral reformation by the Italian of Aschaf- 
party at Constance ; but she did fen^urg. 
not supply the want of the council's de- 
crees with sufficient decision. A con- 
cordat with Martin V. left the pope in 
possession of too great a part of his re- 
cent usurpations.^ This, however, was 
repugnant to the spirit of Germany, which 
called for a more thorough reform with 
all the national roughness and honesty. 
The diet of Mentz, during the continuance 

»Walsingham,p.371,379. Rot. Pari, 11 H.IV., 
vol. iii., p. 645. The remarkable circumstances 
detailed by Walsingham in the former passage are 
not corroborated by any thing in the records. But 
as it is unlikely that so particular a narrative 
should have no foundation, Hume has plausibly 
conjectured that the roll has been wilfully mutila 
ted. As this suspicion occurs in other instances, 
it would be desirable to ascertain, by examination 
of the original rolls, whether they bear any exter- 
nal marks of injury. The mutilators, however, if 
such there were, have left a great deal. The rolls 
of Henry IV. and V.'s parliaments are quite full of 
petitions against the clergy. 

t 3 Inst., p. 121. Collier, vol. 1., p. 668. 

j 2 Inst., p. 634, where several instances of priests 
executed for coining and other treasons are addu- 
ced. And this may also be inferred from 25 E. III., 
stat. 3, c. 4 ; and from 4 H. IV., c. 3. Indeed, the 
benefit of clergy has never been taken away by 
statute from high treason. This renders it improb- 
able that Chief-justice Gascoyne should, as Carte 
tells us, vol. ii., p. 664, have refused to try Arch- 
bishop Scrope for treason, on the ground that no 
one could lawfully sit in judgment on a bishop foi 
his life. Whether he might have declined to try 
him as a peer, is another question. The pope ex- 
communicated all who were concerned in Scrope's 
death, and it cost Henry a large sum to obtain ab- 
solution. But Boniface IX. was no arbiter of the 
English law. Edward I V. granted a strange char- 
ter to the clergy, not only dispensing with the stat- 
utes of premunire, but absolutely exempting them 
from temporal jurisdiction in cases of treason as 
well as felony. — Wilkins, Concilia, t. iii., p. 583. 
Collier, p. 678. This, however, being an illegal 
grant, took no effect, at least after his death. 

9 Lenfant, t. ii., p. 428. Schmidt, t. v., p. 131 



3U 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VU. 



of the council of Basle, adopted all those 
regulations hostile to the papal interests 
which occasioned the deadly quarrel be- 
tween that assembly and the court of 
Rome.* But the German empire was be- 
trayed by Frederick III., and deceived 
by an accomplished but profligate states- 
man, his secretary, ^neas Sylvius. Fresh 
concordats, settled at Aschaffenburg, in 
1448, nearly upon the footing of those 
concluded with Martin V., surrendered 
great part of the independence for which 
Germany had contended. The pope re- 
tained his annates, or at least a sort of 
tax in their place ; and instead of reserv- 
ing benefices arbitrarily, he obtained the 
positive right of collation during six al- 
ternate months of every year. Episco- 
pal elections were freely restored to the 
chapters, except in case of translation, 
when the pope still continued to nomi- 
nate ; as he did also, if any person, ca- 
nonically unfit, were presented to him 
for confirmation.! Such is the concordat 
of Aschaffenburg, by which the Catholic 
principalities of the empire have always 
been governed, though reluctantly ac- 
quiescing in its disadvantageous provis- 
ions. Rome, for the remainder of the 
fifteenth century, not satisfied with the 
terms she had imposed, is said to have 
continually encroached upon the right of 
election. J But she purchased too dearly 
her triumph over the weakness of Fred- 
crick III., and the hundred grievances of 
Germany, presented to Adrian VI. by the 
diet of Nuremberg, in 1522, manifested 
the workings of a long-treasured resent- 
ment, that had made straight the path 
before the Saxon reformer. 

I have already taken notice that the 

Castihan church was in the first 
Froadi-"' ages of that monarchy nearly in- 
ments on dependent of Rome. But, after 
Castile "^ many gradual encroachments, the 

code of laws promulgated by Al- 
fonso X. had incorporated a great part 
of the decretals, and thus given the papal 



* Schmidt, t. v., p. 221. Lenfant. 

t Schmidt, t. v., p. 250; t. vi., p. 94, &c. He 
observes that there is three times as much money 
at present as in the fifteenth century ; if, therefore, 
the annates are now felt as a burden, what must 
they have been ? p. 113. To this Rome would an- 
swer: if the annates were but sufficient for the 
pope's maintenance at that time, what must they 
be now ? 

i Schmidt, p. 98. .^neas Sylvius, Epist. 369 
and 371; and De Moribus Germanorum, p. 1041, 
1061. Several little disputes with the pope indi- 
cate the spirit that was fermenting in Germany 
throughout the fifteenth century. Hut this is the 
proper subject of a more detailed ecclesiastical his- 
tory, and should form an introduction to that of 
the Reformation. 



jurisprudence an authority which it no- 
where else possessed in national tribu- 
nals.* That richly-endowed hierarchy 
was a tempting spoil. The popes filled 
up its benefices by means of expectatives 
and reserves with their own Italian de- 
pendants. We find the cortes of Palen- 
cia, in 1388, complaining that strangers 
are beneficed in Castile, through which 
the churches are ill supplied, and native 
scholars cannot be provided, and re- 
questing the king to take such measures 
in relation to this as the kings of France, 
Aragon, and Navarre, who do not permit 
any but natives to hold benefices in their 
kingdoms. The king answered to this 
petition that he would use his endeavours 
to that end.f And this is expressed with 
greater warmth by a cortes of 1473, who 
declare it to be the custom of all Chris- 
tian nations that foreigners should not be 
promoted to benefices, urging the dis- 
couragement of native learning, the de- 
cay of charity, the bad performance of re- 
ligious rites, and other evils arising from 
the nonresidence of beneficed priests, 
and request the king to notify to the court 
of Rome that no expectative or provis- 
ion in favour of foreigners can be receiv- 
ed in future. J This petition seems to 
have passed into a law ; but I am ignorant 
of the co-nsequences. Spain certainly 
took an active part in restraining the 
abuses of pontifical authority at the coun- 
cils of Constance and Basle ; to which I 
might add the name of Trent, if that as- 
sembly were not beyond my province. 

France, dissatisfied with the abortive 
termination of her exertions du- cgcjjgo^ 
ring the schism, rejected the con- papal au- 
cordatoff"ered by Martin V., which thority in 
held out but a promise of im- '^^"'^'" 
perfect reformation.^ She suffered in 
consequence the papal exactions for some 
years, till the decrees of the council of 
Basle prompted her to more vigorous ef- 
forts for independence, and Charles VII. 
enacted the famous Pragmatic Sanction 
of Bourges.|| This has been deemed a 
sort of Magna Charta of the Galilean 
church ; for though the law was speedily 
abrogated, its principle has remained fixed 
as the basis of ecclesiastical liberties. 
By the Pragmatic Sanction a genera] 
council was declared superior to the pope ; 

* Marina, Ensayo Historico-Critico, c. .320, &c. 

f Idem, Teoria de las Cortes, t. iii., p. 126. 

X Idem. t. ii., p. 364. Mariana, Hist. Hispan., 

' () Villaret, t. xv., p. 126. 

II Idem, p. 203. Hist, du Droit Public Eccl^s. 
FranQois, t. ii., p. 234. Fleury, Institutions au Droit. 
Crevier, t. iv., p. 100. Pasquier, Recherches de la 
France, 1. iii., c. 27. 



Chap. VM.J 



ECCLESIASTICAL POWER. 



315 



elections of bishops were made free from 
all control ; mandats or grants in ex- 
pectancy, and reservations of benefices 
were taken away ; first fruits were abol- 
ished. This defalcation of wealth, which 
had now become dearer than power, 
could not be patiently borne at Rome. 
Pius II., the same ^Eneas Sylvius who 
had sold himself to oppose the council 
of Basle, in whose service he had been 
originally distinguished, used every en- 
deavour to procure the repeal of this or- 
dinance. With Charles VII. he had no 
success ; but Louis XI., partly out of 
blind hatred to his father's memory, 
partly from a delusive expectation that 
the pope would support the Angevin fac- 
tion in Naples, repealed the Pragmatic 
Sanction.* This may be added to other 
proofs that Louis XL, even according to 
the measures of worldly wisdom, was 
not a wise politician. His people judged 
from better feelings ; the parliament of 
Paris constantly refused to enregister the 
revocation of that favourite law, and it 
continued in many respects to be acted 
upon until the reign of Francis I.f At 
the States-General of Tours, in 1484, the 
inferior clergy, seconded by the two other 
orders, earnestly requested that the Prag- 
matic Sanction might be confirmed ; but 
the prelates were timid or corrupt, and 
the Regent Anne was unwilling to risk a 
quarrel with the Holy See. J This un- 
settled state continued, the Pragmatic 
Sanction neither quite enforced nor quite 
repealed, till Francis I., having accom- 
modated the differences of his predeces- 
sor with Rome, agreed upon a final con- 
cordat with Leo X., the treaty that sub- 
sisted for almost three centuries between 
the papacy and the kingdom of France.^ 
Instead of capitular election or papal pro- 
vision, a new method was devised for 
filling the vacancies of episcopal sees. 
The king was to nominate a fit person, 
■whom the pope was to collate. The 
one obtained an essential patronage, the 
other preserved his theoretical suprem- 
acy. Annates were restored to the pope ; 
a concession of great importance. He 
gave up his indefinite prerogative of re- 
serving benefices, and received only a 
small stipulated patronage. This con- 
vention met with strenuous opposition in 
France ; the parliament of Paris yielded 

* Villaret and Gamier, t. xvi. Crevier, t. iv., p. 
256, 274. 

t Gamier, t. xvi., p. 432 ; t. xvii., p. 222, et alibi. 
Crevier, t. iv., p. 318, et alibi. 

t Gamier, t. xix., p. 216 and 321. 

i) Idem, t. xxiii., p. 151. Hist, du Droit Public 
Eccles. Fr., t. ii., p. 243. Fleury, Institutions au 
Droit, t. i., p. 107. 



only to force ; the university hardly stop- 
ped short of sedition ; the zealous Galil- 
eans have ever since deplored it as a 
fatal wound to their liberties. There is 
much exaggeration in this, as far as the 
relation of the Galilean church to Rome 
is concerned ; but the royal nomination 
to bishoprics impaired of course the in- 
dependence of the hierarchy. Whether 
this prerogative of the crown were upon 
the whole beneficial to France, is a prob- 
lem that I cannot affect to solve ; in this 
country there seems little doubt that 
capitular elections, which the statute of 
Henry VIII. had reduced to a name, 
would long since have degenerated into 
the corruption of close boroughs ; but 
the circumstances of the Galilean estab- 
lishment may not have been entirely sim- 
ilar, and the question opens a variety of 
considerations that do not belong to my 
present subject. 

From the principles established during 
the schism, and in the Pragmatic Liberties 
Sanction of Bourges, arose the of the 
far-famed liberties of the Galilean ^'jaiiican 
church, which honourably distin- 
guished her from other members of the 
Roman communion. These have been 
referred by French writers to a much ear- 
lier era; but, except so far as that coun- 
try participated in the ancient ecclesias- 
tical independence of all Europe, before 
the papal encroachments had subverted 
it, I do not see that they can be properly 
traced above the fifteenth century. Nor 
had they acquired, even at the expiration 
of that age, the precision and consistency 
which was given in later times by the 
constant spirit of the parliaments and 
universities, as well as by the best ec- 
clesiastical authors, with little assistance 
from the crown, which, except in a few 
periods of disagreement with Rome, has 
rather been disposed to restrain the more 
zealous Galileans. These liberties, there- 
fore, do not strictly fall within my limits ; 
and it will be sufficient to observe that 
they depended upon two maxims ; one, 
that the pope does not possess any direct 
or indirect temporal authority ; the other, 
that his spiritual jurisdiction can only be 
exercised in conformity with such parts 
of the canon law as are received by the 
kingdom of France. Hence the Gallican 
church rejected a great part of the Sext 
and Clementines, and paid little regard to 
modern papal bulls, which in fact obtain- 
ed validity only by the king's approba- 
tion.* 



♦ Fleury, Institutions au Droit, t. ii.,p. 226, &c., 
and Disoours sur les Liberies de I'Eglise Galli- 
cane. The last editors of this dissertation go far 



316 



EUROPE DURING THE MIDDLE AGES. 



[Ch^p. VII. 



The pontifical usurpations which were 

Ecclesiastical ^hus restrained, affected, at 
jurisdiction least in their direct operation, 
restrained. j.g^j.}^gj. ^j^g church than the 

state ; and temporal governments would 
only have been half emancipated, if their 
national hierarchies had preserved their 
enormous jurisdiction.* England, in this 
also, began the work, and had made a 
considerable progress, while the mistaken 
piety or policy of Louis IX. and his suc- 
cessors had laid France open to vast en- 
croachments. The first method adopted 
in order to check them was rude enough ; 
by seizing the bishop's eff'ects when he 
exceeded hisjurisdiction.f This jurisdic- 
tion, according to the construction of 
churchmen, became perpetually larger : 
even the reforming council of Constance 
give an enumeration of ecclesiastical 
causes far beyond the limits acknowledg- 
ed in England, or perhaps in France. | 
But the parliament of Paris, instituted ni 
1304, gradually established a paramount 
authority over ecclesiastical as well as 
civil tribunals. Their progress was in- 
deed very slow. At a famous assembly 
in 1329 before Philip of Valois, his advo- 
cate-general, Peter de Cugnieres, pro- 
nounced a long harangue against the ex- 
cesses of spiritual jurisdiction. This is a 
curious illustration of that branch of legal 
and ecclesiastical history. It was an- 

beyond Fleury, and perhaps reach the utmost, point 
in limiting the papal authority which a sincere 
member of that communion can attain.— See notes, 
p. 417 and 445. 

* It ought always to be remembered, that ecclesi- 
astical, and not merely papal, encroachments are 
what civil governments and the laity in general 
have had to resist ; a point which some very zeal- 
ous opposers of Rome have been willing to keep 
out of sight. The latter arose out of the former, 
and, perhaps, were in some respects less objection- 
able. But the true enemy is what are called High- 
church principles ; be they maintained by a pojie, 
bishop, or a presbyter. Thus Archbishop Strat- 
ford writes to Edward III. : Duo sunt, quibus prin- 
cipaliterregitur mundus, sacra pontificalis auctori- 
tas, et regalis ordinata potestas : in quibus est pon- 
dus tanto gravius et sublimius sacerdotum, quanto 
et de regibus illi in divino reddituri sunt examine 
rationem : et ideo scire debet regia celsitudo e.^c il- 
lorum vos dependere iudicio, non illos ad vestram 
dirigi posse voluntatem. — Wilkins, Concilia, t. ii., 
p. 603. This amazing impudence towards such a 
prince as Edward did not succeed; but it is in- 
teresting to follow the track of the star which was 
now rather receding, though still fierce. 
f De Marca, De Concordantia, 1. iv., c. 18. 
j Id., c. 15. Lenfant, Cone, de Constance, t. ii., 
p. 331. De Marca, 1. iv., c. 15, gives us passages 
from one Durandus, about 1,309, complaining that 
the lay judges invaded ecclesiastical jurisdiction, 
and reckoning the cases subject to the latter, un- 
der which he includes feudal and criminal causes 
in some circumstances, and also those in which 
the temporal judges are in doubt ; si quid ambigu- 
um inter indices saeculares oriatur. 



swered at large by some bishops, and the 
king did not venture to take any active 
measures at that time.* Several regula- 
tions were however made in the four- 
teenth century, which took away the ec- 
clesiastical cognizance of adultery, of the 
execution of testaments, and other causes 
which had been claimed by the clergy.f 
Their immunity in criminal matters was 
straitened by the introduction of privileged 
cases, to which it did not extend ; such 
as treason, murder, robbery, and other 
heinous off"ences. J The parhament began 
to exercise a judicial control over episco- 
pal courts. It was not, however, till the 
beginning of the sixteenth century, ac- 
cording to the best writers, that it devised 
its famous form of procedure, the appeal 
because of abuse. ^ This, in the course 
of time, and through the decline of eccle- 
siastical power, not only proved an ef- 
fectual barrier against encroachments of 
spiritual jurisdiction, but drew back again 
to the lay court the greater part of those 
causes which by prescription, and indeed 
by law, had appertained to a different cog- 
nizance. Thus testamentary, and even 
in a great degree matrimonial causes, 
were decided by the parliament ; and in 
many other matters, that body, being the 
judge of its own competence, narrowed, 
by means of the appeal because of abuse, 
the boundaries of the opposite jurisdic- 
tion. || This remedial process appears to 
have been more extensively applied than 
our English writ of prohibition. The latter 
merely restrains the interference of the 
ecclesiastical courts in matters which the 
law has not committed to them. But the 
parliament of Paris considered itself, I 
apprehend, as conservator of the liberties 
and discipline of the Gallican church ; and 
interposed the appeal because of abuse, 
whenever the spiritual court, even in its 
proper province, transgressed the canoni- 
cal rules by which it ought to be govern • 
e^ 

♦ Velly, t. viii., p. 234. Fleury, Institutions, t. 
ii., p. 12. Hist, du Droit Eccles. Franc;., t. ii., p. 86 

t Villaret, t. xi., p. 182. 

i Fleury, Institutions au Droit, t. ii., p. 138. In 
the famous case of Balue, a bishop and cardinal, 
whom Louis XI. detected in a treasonable intrigue, 
it was contended by the king that he had a right to 
punish him capitally.— Du Clos, Vie de Louis XI., 
t. i., p. 422. Gamier, Hist, de France, t. xvii., p. 
330. Balue was confined for many years in a small 
iron cage, which till lately was shown in the castle 
of Loches. 

() Pasquier, 1. iii., c. 33. Hist, du Droit Eccles. 
Fran(;ois, t. ii., p. 119. Fleury, Institutions au 
Droit Eccles. Francjois, t. ii., p. 221. De Marca, 
De Concordantia Sacerdotii et Imperii, 1. iv., c. 19. 
The last author seems to carry it rather higher. 

II Fleury, Institutions, t. li.. p, 42, &c. 

ir De Marca, De Concordantia, 1. iv., c. 9. Fleu- 



Chap. VII.] 



ECCLESIASTICAL POWER. 



817 



While the bishops of Rome were losing 
„ ,. , their general influence over Eu- 

Dectine of t\ j • j . 

Papal influ- rope, they did not gain more es- 
ence in ita- tiiiiation in Italy. It is indeed 
'y* a problem of some difficulty, 

whether they derived any substantial 
advantage from their temporal principali- 
ty. For the last three centuries, it has 
certainly been conducive to the mainte- 
nance of their spiritual supremacy, which, 
in the complicated relations of pohcy, 
might have been endangered by their be- 
coming the subjects of any particular 
sovereign. But I doubt whether their 
real authority over Christendom in the 
middle ages was not better preserved by 
a state of nominal dependance upon the 
empire, without much effective control 
on one side, or many temptations to 
worldly ambition on the other. That 
covetousness of temporal sway which, 
having long prompted their measures of 
usurpation and forgery, seemed, from the 
time of Innocent III. and Nicolas III., 
to reap its gratification, impaired the 
more essential parts of the papal author- 
ity. In the fourteenth and fifteenth cen- 
turies, the popes degraded their character 
by too much anxiety about the politics of 
Italy. The veil woven by religious awe 
Avas rent asunder, and the features of or- 
dinary ambition appeared without dis- 
guise. For it was no longer that magnif- 
icent and original system of spiritual 
power, which made Gregory VII., even 
in exile, a rival of the emperor, which 
held forth redress where the law could 
not protect, and punishment where it 
could not chastise, which fell in some- 
times with superstitious feeling, and 
sometimes with political interest. Many 
might believe that the pope could depose 
a schismatic prince, who were disgusted 
at his attacking an unoffending neighbour. 
As the cupidity of the clergy in regard to 
worldly estate had lowered their charac- 
ter everywhere, so the similar conduct 
of their head undermined the respect felt 
for him in Italy. The censures of the 
church, those excommunications and in- 
terdicts which had made Europe trem- 
ble, became gradually despicable as well 
as odious, when they were lavished in 
every squabble for territory which the 
pope was pleased to make his own.* 

ry, t. ii., p. 224. In Spain, even now, says De Mar- 
ca, bishops or clerks not obeying royal. mandates 
that inhibit the excesses of ecclesiastical courts, 
are expelled from the kingdom and deprived of the 
rights of denizenship. 

* In 1290, Pisa was put under an interdict for 

having conferred the signiory on the Count of 

Montefeltro,and he wa., ordered, on pain of excom- 

ication, to lay down the govermnent within a 



Even the crusades, which had already 
been tried against the heretics of Lan- 
guedoc, were now preached against all 
who espoused a different party from the 
Roman see in the quarrels of Italy. Such 
were those directed at Frederick II., at 
Manfred, and at Matteo Visconti, accom- 
panied by the usual bribery, indulgences 
and remission of sins. The papal inter- 
dicts of the fourteenth century wore a 
different complexion from those of for- 
mer times. Though tremendous to the 
imagination, they had hitherto been con- 
fined to spiritual effects, or to such as 
were connected with religion, as the pro- 
hibition of marriage and sepulture. But 
Clement V., on account of an attack 
made by the Venetians upon Ferrara, in 
1309, proclaimed the whole people infa- 
mous, and incapable for three genera- 
tions of any office ; their goods, in every 
part of the world, subject to confiscation, 
and every Venetian, wherever he might 
be found, liable to be reduced into slave- 
ry.* A bull in the same terms was pub- 
lished by Gregory XI., in 1376, against 
the Florentines. 

From the termination of the schism, 
as the popes found their ambition thwart- 
ed beyond the Alps, it was diverted more 
and more towards schemes of temporal 
sovereignty. In these we do not per- 
ceive that consistent policy, which re- 
markably actuated their conduct as su- 
preme heads of the church. IMen gener- 
ally advanced in years, and born of no- 
ble Italian families, made the papacy 
subservient to the elevation of their kin- 
dred, or to the interests of a local fac- 
tion. For such ends they mingled in the 
dark conspiracies of that bad age, distin- 
guished only by the more scandalous tur- 
pitude of their vices from the petty ty- 
rants and intriguers with whom they 
were engaged. In the latter part of the 
fifteenth century, when all favourable 
prejudices were worn away, those who 
occupied the most conspicuous station in 
Europe disgraced their name by more no- 
torious profligacy than could be parallel- 
ed in the darkest age that had preceded ; 
and at the moment beyond which this 
work is not carried, the invasion of Italy 
by Charles VIII., I must leave the pon- 
tifical throne in the possession of Alex- 
ander VI. 

It has been my object in the present 

month.— Muratori ad ann. A curious style for the 
pope to adopt towards a free city ! Six years be- 
fore the Venetians had been interdicted, because 
they would not allow their galleys to be hired by 
the King of Naples. But it would be almost end 
less to quote every instance. 
* Muratori. 



318 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



chapter to bring within the compass of 
a few hours' perusal the substance of a 
great and interesting branch of history ; 
not certainly with such extensive reach 
of learning as the subject might require, 
but from sources of unquestioned credi- 
bihty. Unconscious of any partialities 
that could give an oblique bias to my 
mind, I have not been very solicitous to 
avoid offence where offence is so easily 
taken. Yet there is one misinterpreta- 
tion of my meaning which I would gladly 
obviate. I have not designed, in exhibit- 
ing without disguise the usurpations of 
Rome during the middle ages, to furnish 
materials for unjust prejudice or unfound- 
ed distrust. It is an advantageous cir- 
cumstance for the philosophical inquirer 
into the history of ecclesiastical domin- 
ion, that, as it spreads itself over the 
vast extent of fifteen centuries, the de- 
pendance of events upon general causes, 
rather than on transitory combinations 
or the character of individuals, is made 
more evident, and the future more prob- 
ably foretold from a consideration of the 
past, than we are apt to find in political 
history. Five centuries have now elap- 
sed, during every one of which the au- 
thority of the Roman see has succes- 



sively declined. Slowly and silently re- 
ceding from their claims to temporal 
power, the pontiffs hardly protect their 
dilapidated citadel from the revolution- 
ary concussions of modern times, the ra- 
pacity of governments, and the grow 
ing averseness to ecclesiastical influence. 
But, if thus bearded by unmannerly and 
threatening innovation, they should occa- 
sionally forget that cautious policy which 
necessity has prescribed, if they should 
attempt, an unavailing expedient! to re- 
vive institutions which can be no longer 
operative, or principles that have died 
away, their defensive efforts will not be 
unnatural, nor ought to excite either 
indignation or alarm. A calm, compre- 
hensive study of ecclesiastical history, 
not in such scraps and fragments as the 
ordinary partisans of our ephemeral lit- 
erature obtrude upon us, is perhaps the 
best antidote to extravagant apprehen- 
sions. Those who know what Rome has 
once been are best able to appreciate 
what she is ; those who have seen the 
thunderbolt in the hands of the Gregories 
and the Innocents, will hardly be intimi- 
dated at the sallies of decrepitude, the 
impotent dart of Priam amid the crack- 
ling ruins of Troy. 



CHAPTER VIII. 



THE CONSTITUTIONAL HISTORY OF ENGLAND. 



PART I. 

The Anglo-Saxon Constitution. — Sketch of An- 
glo-Saxon History. — Succession to tlie Crown. 
— Orders of Men. — Thanes and Ceorls. — Wit- 
tenagemot. — Judicial System. — Division into 
Hundreds. — County-Court. — Trial by Jury — its 
Antiquity investigated. — Law of Frank-pledge — 
its several Stages. — Question of Feudal Ten- 
ures before the Conquest. 

No unbiased observer, who derives 
pleasure from the welfare of his species, 
can fail to consider the long and uninter- 
ruptedly increasing prosperity of England 
as the most beautiful phenomenon in the 
history of mankind. Climates more pro- 
pitious may impart more largely the 
mere enjoyments of existence ; but in no 
other region have the benefits that polit- 
ical institutions can confer been diffused 
over so extended a population ; nor have 
any people so well reconciled the dis- 
cordant elements of wealth, order, and 
liberty. These advantages are surely 



not owing to the soil of this island, no 
to the latitude in which it is placed ; but 
to the spirit of its laws, from which, 
through various means, the characteristic 
independence and industriousness of our 
nation have been derived. The consti- 
tution, therefore, of England must be to 
inquisitive men of all countries, far more 
to ourselves, an object of superior inter- 
est; distinguished especially, as it is 
from all free governments of powerful 
nations Avhich hi^ory has recorded, by 
its manifesting, after the lapse of several 
centuries, not merely no symptom of ir- 
retrievable decay, but a more expansive 
energy. Comparing long periods of 
time, it may be justly asserted that the 
administration of government has pro- 
gressively become more equitable, and 
the privileges of the subject more secure ; 
and, though it would be both presumptu- 
ous and unwise to express an unlimited 
confidence as to the durability of liber- 



Part I] 



ENGLISH CONSTITUTION 



319 



ties which owe their greatest security to 
he constant suspicion of the people, yet, 
if we cahnly reflect on the present as- 
pect of this country, it will probably ap- 
pear, that whatever perils may threaten 
our constitution are rather from circum- 
stances altogether unconnected with it 
than from any intrinsic defects of its own. 
It will be the object of the ensuing chap- 
ter to trace the gradual formation of this 
system of government. Such an inves- 
tigation, impartially conducted, will de- 
tect errors diametrically opposite; those 
intended to impose on the populace, 
which, on account of their palpable ab- 
surdity and the ill faith with which they 
are usually proposed, I have seldom 
thought it worth while directly to re- 
pel ; and those which better informed 
persons are apt to entertain, caught from 
transient reading and the misrepresenta- 
tions of late historians, but easily refuted 
by the genuine testimony of ancient times. 
The seven very unequal kingdoms of 
Sketch of ^^^ Saxon Heptarchy, formed 
Anglo- successively out of the countries 
Saxon wrested from the Britons, were 
nistory. oi-jginally independent of each 
other. Several times, however, a power- 
ful sovereign acquired a preponderating 
influence over his neighbours, marked 
perhaps by the payment of tribute. Sev- 
en are enumerated by Bede as having 
thus reigned over the whole of Britain ; 
an expression which must be very loose- 
ly interpreted. Three kingdoms became 
at length predominant ; those of Wessex, 
Mercia, and Northumberland. The first 
rendered tributary the small estates of 
the Southeast, and the second that of the 
Eastern Angles. But Egbert, king of 
Wessex, not only incorporated with his 
own monarchy the dependant kingdoms 
of Kent and Essex, but obtained an ac- 
knowledgment of his superiority from 
Mercia and Northumberland; the latter 
of Avhich, though the most extensive of 
any Anglo-Saxon state, was too much 
weakened by its internal divisions to of- 
fer any resistance.* Still, however, the 
kingdoms of Mercia, East Anglia, and 
Northumberland remained under their 
ancient line of sovereigns ; nor did either 
Egbert or his five immediate successors 
assume the title of any other crown than 
Wessex. t 



* Chronicon Saxonicum, p. 70. 

+ Alfred denominates himself in his will, Occi- 
dentalium Saxorum rex ; and Asserius never gives 
him any other name. But his son Edward the El- 
der takes the title of Rex Anglorum on his coins. — 
Vid. Numismata Anglo-Saxon, in Hickes's The- 
eaarus, vol ii. 



The destruction of those minor states 
was reserved for a diff'erent enemy. 
About the end of the eighth century the 
northern pirates began to ravage the 
coast of England. Scandinavia exhibited 
in that age a very singular condition of 
society. H^ population, continually re- 
dundant in those barren regions which 
gave it birth, was cast out in search of 
plunder upon the ocean. Those who 
loved riot rather than famine embarked 
in large armaments under chiefs of legit- 
imate authority, as well as approved val- 
our. Such were the sea-kings, renown- 
ed in the stories of the North ; the young- 
er branches commonly of royal families, 
who inherited, as it were, the sea for 
their patrimony. Without any territory 
but on the bosom of the waves, without 
any dwelling but their ships, these prince- 
ly pirates were obeyed by numerous sub- 
jects, and intimidated mighty nations.* 
Their invasions of England became con- 
tinually more formidable ; and, as their 
confidence increased, they began first to 
winter, and ultimately to form permanent 
settlements in the country. By their 
command of the sea, it was easy for 
them to harass every part of an island 
presenting such an extent of coast as 
Britain ; the Saxons, after a brave resist- 
ance, gradually gave way, and were on 
the brink of the same servitude or exter- 
mination which their own arms had al- 
ready brought upon the ancient posses- 
sors. 

From this imminent peril, after the 
three dependant kingdoms, Mercia, Nor- 
thumberland, and East Anglia, had been 
overwhelmed, it was the glory of Alfred 
to rescue the Anglo-Saxon monarchy. 
Nothing less than the appearance of a 
hero so undesponding, so enterprising, 
and so just, could have prevented the en- 
tire conquest of England. Yet he never 
subdued the Danes, nor became master 
of the whole kingdom. The Thames, 
the Lea, the Ouse, and the Roman road 
called Watling-street, determined the lim- 
its of Alfred's dominion. f To the north- 
east of this boundary were spread the in- 
vaders, still denominated the armies of 
East Anglia and Northumberland ; J a 
name terribly expressive of foreign con- 
querors, who retained their warlike con- 
federacy without melting into the mass 

* For these Vikingr, or sea-kings, a new and in- 
teresting subject, I would refer to Mr. Turner's 
History of the Anglo-Saxons, in which valuable 
work almost every particular that can illustrate 
our early annals will be found. 

t VVilkins, Leges Anglo-Saxon., p. 47. Chron. 
Saxon., p. 99. 

} Chronicon Saxon., passim. 



320 



EUROPE DURING THE MIDDLE AGES. 



[Chip. VIII. 



of their subject population. Three able 
and active sovereigns, Edward, Athel- 
stan, and Edmund, the successors of Al- 
fred, pursued the course of victory, and 
finally rendered the English monarchy 
coextensive with the present limits of 
England. Yet even Edg^r, the most 
powerful of the Anglo-Saxon kings, did 
not venture to interfere with the legal 
customs of his Danish subjects.* 

Under this prince, whose rare fortune 
as well as judicious conduct procured 
him the surname of Peaceable, the king- 
dom appears to have reached its zenith 
of prosperity. But his premature death 
changed the scene. The minority and 
feeble character of Ethelred II. provoked 
fresh incursions of our enemies beyond 
the German Sea. A long series of dis- 
asters, and the inexplicable treason of 
those to whom the pubhc safety was in- 
trusted, overthrew the Saxon line, and 
established Canute of Denmark upon the 
throne. 

The character of the Scandinavian na- 
tions was in some measure changed from 
what it had been during their first inva- 
sions. They had embraced the Christian 
faith ; they were consolidated into great 
kingdoms ; they had lost some of that 
predatory and ferocious spirit which a re- 
ligion, invented, as it seemed, for pirates, 
had stimulated. Those too who had 
long been settled in England became 
gradually more assimilated to the na- 
tives, whose laws and language were not 
radically different from their own. Hence 
the accession of a Danish line of kings 
produced neither any evil nor any sen- 
sible change of polity. But the English 
still outnumbered their conquerors, and 
eagerly returned, when an opportunity 
arrived, to the ancient stock. Edward 
the Confessor, notwithstanding his Nor- 
man favourites, was endeared by the mild- 
ness of his character to the English na- 
tion ; and subsequent miseries gave a 
kind of posthumous credit to a reign not 
eminent either for good fortune or wise 
government. 

In a stage of civilization so little ad- 
Succession vanced as that of the Anglo-Sax- 
to the ons, and under circumstances 
crown. Qf such incessant peril, the for- 
tunes of a nation chiefly depend upon the 
wisdom and valour of its sovereigns. 



* Wilkins, Leges Anglo-Saxon., p. 83. In 1064, 
after a revolt of the Northumbrians, Edward the 
Confessor renewed the laws of Canute. — Chronic. 
Saxon. It seems now to be ascertained by the 
comparison of dialects, that the inhabitants from 
the Humber, or at least the Tyne, to the Firth of 
Forth, were chiefly Danes. 



No free people, therefore, would intrust 
their safety to blind chance, and permit 
a uniform observance of hereditary suc- 
cession to prevail against strong public 
expediency. Accordingly the Saxons, 
like most other European nations, while 
they limited the inheritance of the crown 
exclusively to one royal family, were 
not very scrupulous about its devolution 
upon the nearest heir. It is an unwar- 
ranted assertion of Carte, that the rule 
of the Anglo-Saxon monarchy was " lin- 
eal agnatic succession, the blood of the 
second son having no right until the ex- 
tinction of that of the eldest."* Unques- 
tionably the eldest son of the last king, 
being of full age, and not manifestly in- 
competent, was his natural and probable 
successor ; nor is it perhaps certain that 
he always waited for an election to take 
upon himself the rights of sovereignty; 
although the ceremony of coronation, 
according to the ancient form, appears to 
imply its necessity. But the public se- 
curity in those times was thought incom- 
patible with a minor king ; and the arti- 
ficial substitution of a regency, which 
stricter notions of hereditary right have 
introduced, had never occurred to so 
rude a people. Thus, not to mention 
those instances Avhich the obscure times 
of the Heptarchy exhibit, Ethelred I., as 
some say, but certainly Alfred, excluded 
the progeny of their elder brother from 
the throne. t Alfred, in his testament, 
dilates upon his own title, which he builds 
upon a triple foundation, the will of his 
father, the compact of his brother Ethel- 
red, and the consent of the West Saxon 
nobility. J A similar objection to the 
government of an infant seems to have 
rendered Athelstan, notwithstanding his 
reputed illegitimacy, the public choice 
upon the death of Edward the Elder. 
Thus, too, the sons of Edmund I. were 
postponed to their uncle Edred, and 
again preferred to his issue. And happy 
might it have been for England if this 
exclusion of infants had always obtained. 
But upon the death of Edgar, the royal 
family wanted some prince of mature 
years to prevent the crown from resting 
upon the head of a child ;^ and hence the 



* Vol. i., p. 365. Blackstone has laboured to 
prove the same proposition ; but his knowledge of 
English history was rather superficial. 

+ Chronicon Saxon., p. 99. Hume says that 
Ethelwald, who attempted to raise an insurrection 
against Edward the Elder, was son of Ethelbert. 
The Saxon Chronicle only calls him the king's 
cousin ; which he would be as the son of Ethelred 

t Spelman, Vita Alfredi, Appendix. 

{) According to the historian of Ramsey, a sort 
of interregnum took place on Edgar's death ; hia 



Paet I] 



ENGLISH CONSTITUTIOiV. 



321 



Influence of 

provincial 

governors. 



minorities of Edward II. and Ethelred II., 
led to misfortunes which overwhelmed 
for a time both the house of Cerdic and 
the English nation. 
The Anglo-Saxon monarchy, during its 
earlier period, seems to have 
suffered but little from that in- 
subordination among the supe- 
rior nobility, which ended in dismember- 
ing the empire of Charlemagne. Such 
kings as Alfred and Athelstan were not 
likely to permit it. And the English 
counties, each under its own alderman, 
were not of a size to encourage the usur- 
pations of their governors. But when 
the whole kingdom was subdued, there 
arose unfortunately a fashion of intrust- 
ing great provinces to the administration 
of a single earl. Notwithstanding their 
union, Mercia, Northumberland, and East 
Anglia were regarded in some degree as 
distinct parts of the monarchy. A differ- 
ence of laws, though probably but slight, 
kept up this separation. Alfred govern- 
ed Mercia by the hands of a nobleman 
■who had married his daughter Ethelfleda ; 
and that lady, after her husband's death, 
held the reins with a masculine energy 
till her own, when her brother Edward 
took the province into his immediate 
command.* But from the era of Edward 
II. 's accession, the provincial governors 
began to overpower the royal authority, 
as they had done upon the continent. 
England, under this prince, was not far 
removed from the condition of France 
under Charles the Bald. In the time of 
Edward the Confessor, the whole king- 
dom seems to have been divided among 
five earis,t three of whom were Godwin 
and his sons Harold and Tostig. It can- 
not be wondered at that the royal line 
was soon supplanted by the most power- 
ful and popular of these leaders, a prince 
well worthy to have founded a new dy- 
nasty, if his eminent qualities had not 
yielded to those of a still more illustrious 
enemy. 

There were but two denominations of 
Distribution persons above the class of ser- 
into Thanes vitudc, Thanes and Ceorls ; the 
owners and the cultivators of 



and Ceorls. 



son's birth not being thought sufficient to give him 
a clear right during infancy. — 3 Gale, xv. Script., 
p. 41.'?. 

* Chronicon Saxon. 

t The word earl (eorl) meant originally a man 
of noble birth, as opposed to the ceorl. It was not 
a title of office till the eleventh century, when it 
was used as synonymous to alderman, for a gov- 
ernor of a county or province. After the conquest, 
It superseded altogether the ancient title. — Selden's 
Titles of Honour, vol. iii., p. 638 (edit. Wilkins), 
and Anglo-Saxon writings passim. 



land, or rather, perhaps, as a more accu- 
rate distinction, the gentry and the infe- 
rior people. Among all the northern na- 
tions, as is well known, the weregild, or 
compensation for murder, was the stand- 
ard measure of the gradations of society. 
In the Anglo-Saxon laws we find two 
ranks of freeholders ; the first, called 
king's thanes, whose lives were valued 
at 1200 shillings ; the second, of inferior 
degree, whose composition was half that 
sum.* That of a ceorl was 200 shillmgs. 
The nature of this distinction between 
royal and lesser thanes is very obscure ; 
and I shall have something more to say 
of it presently. However, the thanes in 
general, or Anglo-Saxon gentry, must 
have been very numerous. A law of Eth- 
elred directs the sheriff to take twelve of 
the chief thanes in every hundred as his 
assessors on the bench of justice. f And 
from Domesday Book we may collect 
that they had formed a pretty large class, 
at least in some counties, under Edward 
the Confessor.| 

The composition for the life of a ceorl 
was, as has been said, 200 shil- condition of 
lings. If this proportion to the i^e ceoris. 
value of a thane points out the subordina- 
tion of ranks, it certainly does not exhib- 
it the lower freemen in a state of com- 
plete abasement. The ceorl was not 
bound, as far as appears, to the land 
which he cultivated ;^ he was occasion- 
ally called upon to bear arms for the 
public safety ;|| he was protected against 
personal injuries, or trespasses on his 
land ;^ he was capable of property, and 
of the privileges which it conferred. If 
he came to possess five hydes of land 
(or about 600 acres), with a church and 
mansion of his own, he was entitled to 
the name and rights of a thane.** I am, 
however, inclined to suspect, that the 
ceorl were sliding more and more towards 
a state of servitude before the conquest. ft 
The natural tendency of such times of 



* Wilkms, p. 40, 43, 64, 72, 101. 

+ Idem, p. 117. 

i Domesday Book having been compiled by dif- 
ferent sets of commissioners, their language has 
sometimes varied in describing the sarne class of 
persons. The liberi homines, of whom we find con- 
tinual mention in some counties, were perhaps not 
different from the thaini, who occur m other places. 
But this subject is very obscure ; and a clear ap- 
prehension of the classes of society mentioned in 
Domesday seems at present unattainable. 

{) Leges Alfredi, c. 33, in Wilkins. This text is 
not unequivocal; and 1 confess that a law of Ina 
(c. 39) has rather a contrary appearance. 

II Leges Inse, c. 51, ibid. 

^ Leges Alfredi, c. 31. 35. 

** Leges Athelstani, ibid., p. 70, 71. 

+t If tiie laws that bear the name of William are 
as is generally supposed, those of hia predecesso 



323 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



rapine, with the analogy of a similar 
change in France, leads to this conjec- 
ture. And as it was part of those singu- 
lar regulations which were devised for 
the preservation of internal peace, that 
every man should be enrolled in some 
tithing, and be dependant upon some 
lord, it was not very easy for the ceorl 
to exercise the privilege (if he possessed 
it) of quitting the soil upon which he 
lived. 

Notwithstanding this, I doubt whether 
it can be proved by any authority earlier 
than that of Glanvil, whose treatise was 
written about 1180, that the peasantry of 
England were reduced to that extreme 
debasement which our law-books call 
villanage, a condition which left them no 
civil rights with respect to their lord. 
For, by the laws of WiUiam the Conquer- 
or, there was still a composition fixed 
for the murder of a villein or ceorl, the 
strongest proof of his being, as it was 
called, law-worthy, and possessing a 
rank, however subordinate, in political 
society. And this composition was due 
to his kindred, not to the lord.* Indeed, 
it seems positively declared in another 
passage, that the cultivators, though 
bound to remain upon the land, were 
only subject to^certain services. f Again, 
the treatise denominated the Laws of 
Henry I., which, though not deserving 
that appellation, must be considered as 
a contemporary document, expressly 
mentions the twyhinder or villein as a 
freeman. I Nobody can doubt that the 
villani and hordarii of Domesday Book, 
who are always distinguished from the 
serfs of the demesne, were the ceorls of 
Anglo-Saxon law.^ And I presume that 
the socmen, who so frequently occur in 
that record, though far more in some 
counties than in others, were ceorls more 
fortunate than the rest, who by purchase 
had acquired freeholds, or by prescrip- 
tion and the indulgence of their lords had 
obtained such a property in the outlands 
allotted to them that they could not be 
removed, and in many instances might 
dispose of them at pleasure. They are 
the root of a noble plant, the free soccage 
tenants, or English yeomanry, whose in- 
dependence has stamped with peculiar 
features both our constitution and our na- 
tional character. 

Beneath the ceorls in political estima- 
tion were the conquered natives of Brit- 
Edward, they were already annexed to the soil, p. 
225. 

* Wilkins, p. 221. t Ibid., p. 225. 

t Leges Henr. I., c. 70 and 76, in Wilkins. 

i Somner on Gavelkind, p. 74. 



ain. In a war so long and so ob- British 
stinately maintained as that of the "^'ivea 
Britons against their invaders, it is natu- 
ral to conclude, that in a great part of the 
country the original inhabitants were al- 
most extirpated, and that the remainder 
were reduced into servitude. This, till 
lately, has been the concurrent opinion 
of our antiquaries ; and with some quali- 
fication, I do not see why it should not 
still be received. In every kingdom of 
the continent, which was formed by the 
northern nations of the Roman empire, 
the Latin language preserved its superi- 
ority, and has much more been corrupted 
through ignorance and want of a stand- 
ard, than intermingled with their original 
idiom. But our own language is, and 
has been from the earliest times after 
the Saxon conquest, essentially Teuton- 
ic, and of the most obvious affinity to 
those dialects which are spoken in Den- 
mark and Lower Saxony. With such as 
are extravagant enough to controvert so 
evident a truth, it is idle to contend ; and 
those who believe great part of our lan- 
guage to be borrowed from the Welsh 
may doubtless infer that great part of 
our population is derived from the same 
source. If we look through the subsist- 
ing Anglo-Saxon records, there is not 
very frequent mention of British subjects. 
But some undoubtedly there were in a 
state of freedom, and possessed of landed 
estate. A Welshman (that is, a Briton), 
who held five hydes, was raised, like a 
ceorl, to the dignity of thane.* In the 
composition, however, for their lives, 
and consequently in their rank in society, 
they were inferior to the meanest Saxon 
freeman. The slaves, who were 
frequently the objects of^ legisla- 
tion, rather for the purpose of ascertain- 
ing their punishments than of securing 
their rights, may be presumed, at least 
in early times, to have been part of the 
conquered Britons. For though his own 
crimes, or the tyranny of others, might 
possibly reduce a Saxon ceorl to this con- 
dition,! it is inconceivable that the low- 
est of those who won England with their 
swords should in the establishment of the 
new kingdoms have been left destitute 
of personal liberty. 

The great council by which an Anglo- 
Saxon king was guided in all TheWitten- 
the main acts of government agemot. 
bore the appellation of Wittenagemot, or 
the assembly of the wise men. All their 
laws express the assent of this council ; 



* Leges Inae, p. 18. Leg. Atheist., p. 71. 
t Leges Inae, c. 21. 



Part 1.] 



ENGLISH CONSTITUTION. 



323 



and there are instances where grants 
made Avithout its concurrence have been 
revoked. It was composed of prelates 
and abbots, of the aldermen of shires, 
and, as it is generally expressed, of the 
noble and wise men of the kingdom.* 
Whether the lesser thanes, or inferior 
proprietors of lands, were entitled to a 
place in the national council, as thfey cer- 
tainly were in the shiregemot, or county- 
court, is not easily to be decided. Many 
writers have concluded from a passage 
in the History of Ely, that no one, how- 
ever nobly born, could sit in the witten- 
agemot, so late at least as the reign of 
Edward the Confessor, unless he pos- 
sessed forty hydes of land, or about five 
thousand acres. f But the passage in 
question does not unequivocally relate 
to the wittenagemot ; and being vaguely 
worded by an ignorant monk, who per- 
haps had never gone beyond his fens, 
ought not to be assumed as an incontro- 
vertible testimony. Certainly so very 
high a qualification cannot be supposed 
to have been requisite in the kingdoms 
of the Heptarchy ; nor do we find any 
collateral evidence to confirm the hypoth- 
esis. If, however, all the body of thanes 
or freeholders were admissible to the 
wittenagemot, it is unlikely that the priv- 
ilege should have been fully exercised. 
Very few, I believe, at present, imagine 
that there was any representative system 
in that age ; much less that the ceorls or 
inferior freemen had the smallest share 
in the deliberations of the national as- 
sembly. Every argument which a spirit 
of controversy once pressed into this 
service, has long since been victoriously 
refuted. 

It has been justly remarked by Hume, 
Judicial that among a people who lived in 
power, so simple a manner as these An- 
glo-Saxons, the judicial power is always 
of more consequence than the legislative. 
The liberties of these Anglo-Saxon thanes 
were chiefly secured, next to their swords 
and their free spirits, by the inestimable 
right of deciding civil and criminal suits 
in their own county-court ; an institution 
which, having survived the Conquest, and 
contributed in no small degree to fix the 
liberties of England upon a broad and 
popular basis, by limiting the feudal aris- 
tocracy, deserves attention in following 
the history of the British constitution. 

The division of the kingdom into coun- 



* Leges Anglo-Saxon., in Wilkins, passim. 

t Quoniam ille quadraginta hydarum terras do- 
minium minime obtmeret, licet nobilis esset, inter 
proceres tunc numcrari non potuit. — 3 Gale, Scrip- 
tores, p. 513. 



ties, and of these into hundreds Division 
and decennaries, for the purpose '""> <=<"»■>• 
of administering justice, was not d'rTds.aia'ii 
peculiar to England. In the early mbings 
laws of France and Lombardy, frequent 
mention is made of the hundred court, 
and now and then of those petty village 
magistrates, who in England were called 
tithing-men. It has been usual to ascribe 
the establishment of this system among 
our Saxon ancestors to Alfred, upon the 
authority of Ingulfus, a writer contem- 
porary with the Conquest. But neither 
the biographer of Alfred, Asserius, nor 
the existing laws of that prince, bear tes- 
timony to the fact. With respect indeed 
to the division of counties, and their gov- 
ernment by aldermen and sheriffs, it is 
certain that both existed long before his 
time ;* and the utmost that can be sup- 
posed is that he might in some instances 
have ascertained an unsettled boundary. 
There does not seem to be equal evi- 
dence as to the antiquity of the minor 
divisions. Hundreds, I think, are first 
mentioned in a law of Edgar, and ti- 
things in one of Canute. f But as Alfred, 
it must be remembered, was never mas- 
ter of more than half the kingdom, the 
complete distribution of England into 
these districts cannot, upon any supposi- 
tion, be referred to him. 

There is, indeed, a circumstance ob- 
servable in this division which seems to 
indicate that it could not have taken place 
at one time, nor upon one system ; I 
mean, the extreme inequality of hundreds 
in diiferent parts of England. Whether 
the name be conceived to refer to the 
number of free families, or of landhold- 
ers, or of petty vills, forming so many 
associations of mutual assurance or frank- 
pledge, one can hardly doubt that, when 
the term was first applied, a hundred of 
one or other of these were comprised, at 
an average reckoning, within the district. 
But it is impossible to reconcile the vary- 
ing size of hundreds to any single hypoth- 
esis. The county of Sussex contains 
sixty-five; that of Dorset forty-three; 
while Yorkshire has only twenty-six; 
and Lancashire but six. No difference of 
population, though the south of England 
was undoubtedly far the best peopled, 
can be conceived to account for so pro- 
digious a disparity. I know of no better 
solution than that the divisions of the 

* Counties, as well as the alderman who pre- 
sided over them, are mentioned in the laws of Ina, 
c. 36. 

t Wilkins, p. 87, 136. The former, howerer, 
refers to them as an ancient institution : qusratur 
centuriae conventus, skul antea institutum erat. 



324 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



north, properly called wapentakes,* were 
planned upon a diflcrent system, and ob- 
tained tlie dcnoniinalion of hundreds in- 
correctly, after the union of all England 
under a single sovereign. 

Assumiiig, therefore, the name and par- 
tition of hundreds to have originated in 
the southern counties, it will rather, 1 
think, appear probable, that they contain- 
ed only a hundred free families, inclu- 
ding the ceorls as well as their landlords. 
If we suppose none but the latter to have 
been numbered, we should find six thou- 
sand thanes in Kent, and six thousand 
five hundred in Sussex ; a reckoning to- 
tally inconsistent with any probable esti- 
mate.! But though we have little direct 
testimony as to the population of those 
times, there is one passage which falls in 
very sufficiently with the former suppo- 
sition. Bede says that the kingdom of 
the South Saxons, comprehending Sur- 
rey as well as Sussex, contained seven 
thousand families. The county of Sus- 
sex alone is divided into sixty-five hun- 
dreds, which comes at least close enough 
to prove that free families, rather than 
proprietors, were the subject of that nu- 
meration. And this is the interpretation 
of Du Cange and Muratori, as to the Cen- 
tenaj and Decaniai of their own ancient 
laws. 

I cannot but feel some doubt, notwith- 
standing a passage in the laws ascribed 
to Edward the Confessor,| whether the 
tithing-man ever possessed any judicial 
magistracy over his small district. He 
was, more probably, little diff'erent from a 
petty constable, as is now the case, I be- 
lieve, wherever that denomination of of- 
fice is preserved. The court of the hun- 
dred, not held, as on the continent, by its 
own centenariusjbut by the sheriff of the 
county, is frequently mentioned in the 
County- later Anglo-Saxon laws. It was, 
court, however, to the county-court that 
an Enghsh freeman chiefly looked for the 
maintenance of his civil rights. In this 
assembly, held monthly, or at least more 
than once in the year (for there seems 
some ambiguity or perhaps fluctuation as 
to this point), by the bishop and the earl, 
or, in his absence, the sherifl", the oath of 
allegiance was administered to all free- 
men, breaches of the peace were inquired 

* Leges Edwardi Confess., c. 33. 

t It would be easy to mention particular hun- 
dreds in these counties, so small as to render this 
supposition quite ridiculous. 

t Leges Edwardi Confess., p. 203. Nothing, as 
far as I know, confirms this passage, which hardly 
tallies with what the genuine Anglo-Saxon docu- 
ments contain as to the judicial arrangements of 
that period. 



into, crimes were investigated, and claims 
were determined. I assign all these func- 
tions to the county-court upon the sup- 
position that no other subsisted during the 
Saxon times, and that the separation of 
the sherilFs tourn for criminal jurisdic- 
tion had not yet taken place, which, how- 
ever, I cannot pretend to determine.* 

A very ancient Saxon instrument, re- 
cording a suit in the county-court suit in the 
under the reign of Canute, has coumy 
been published by Hickes, and '^°^"- 
may be deemed worthy of a literal transla 
tion in this place. " It is made known by 
this writing, that in the shiregemot (coun- 
ty-court) held at Agelnothes-stane (Ayls- 
ton in Herefordshire), in the reign of Ca- 
nute, there sat Athelstan the bishop, and 
Ranig the alderman, and Edwin his son, 
and Leofwin Wulfig's son ; and Thurkil 
the White and Tofig came there on the 
king's business ; and there were Bryning 
the sherift', and Athelweard of Frome, and 
Leofwin of Frome, and Goodric of Stoke, 
and all the thanes of Herefordshire. 
Then came to the mote Edwin son of 
Enneawne, and sued his motlier for some 
lands, called Weolintun and Cyrdeslea. 
Then the bishop asked, who would an- 
swer for his mother. Then answered 
Thurkil the White, and said that he 
would, if he knew the facts, which he 
did not. Then were seen in the mole 
three thanes, that belonged to Feligly 
(Fawley, five miles from Aylston), Leof- 
win of Frome, ^Egelwig the Red, and 
Thinsig Staegthman ; and they went to 
her, and inquired what she had to say 
about the lands which her son claimed. 
She said that she had no land which be- 
longed to him, and fell into a noble pas- 
sion against her son, and calling for Le- 
ofleda her kinswoman, the wife of Thur- 
kil, thus spake to her before them : — ' This 
is Leofleda my kinswoman, to whom I 
gitve my lands, money, clothes, and what- 
ever I possess after my life :' and this 
said, she thus spake to the thanes : ' Be- 
have like thanes, and declare my mes- 
sage to all the good men in the mote, and 
tell them to whom I have given my lands, 
and all my possessions, and nothing to 
my son ;' and bade them be witnesses to 
this. And thus they did, I'ode to the 
mote, and told all the good men what slie 
had enjoined them. Then Thurkil the 
White addressed the mote, and requested 
all the thanes to let his wife have the 
lands which her kinswoman had given 
her; and thus they did, and Thurkil 

* This point is obscure ; but I do not perceive 
that the Anglo-Saxon laws distinguish the civ I 
, from the crmunal tribunal. 



Part I.] 



ENGLISH CONSTITUTION, 



325 



rode to the church of St. Ethelbert, with 
the leave and witness of all the people, 
and had this inserted in a book in the 
church."* 

It may be presumed from the appeal 
made to the thanes present at the county- 
court, and is confirmed by other ancient 
authorities,! that all of them, and they 
alone, to the exclusion of inferior free- 
men, were the judges of civil controver- 
sies. The latter indeed were called upon 
to attend its meetings, or, in the language 
of our present law, were suiters to the 
court, and it was penal to be absent. 
But this was on account of other duties, 
the oath of allegiance which they were 
to take, or the frank-pledges into which 
they were to enter, not in order to exer- 
cise any judicial power ; unless we con- 
ceive that the disputes of the ceorls were 
decided by judges of their own rank. It 
is more important to remark the crude 
state of legal process and inquiry which 
this instrument denotes. Without any 
regular method of instituting or conduct- 
ing causes, the county-court seems to 
have had nothing to recommend it but, 
what indeed is no trifling matter, its se- 
curity from corruption and tyranny ; and 
in the practical jurisprudence of our 
Saxon ancestors, even at the beginning 
of the eleventh century, we perceive no 
advance of civility and skill from the 
state of their own savage progenitors on 
the banks of the Elbe. No appeal could 
be made to the royal tribunal, unless jus- 
tice was denied in the county- court. J 
This was the great constitutional judica- 
ture in all questions of civil right. In 
another instrument, published by Hickes, 
of the age of Ethelred II., the tenant of 
lands which were claimed in the king's 
court refused to submit to the decree of 
that tribunal, without a regular trial in 
the county ; which was accordingly grant- 
ed.^ There were, however, royal judges. 



* Hickes, Dissertatio Epistolaris, p. 4, iu The- 
saurus Antiquitatum Septentrion, vol. iii. Before 
the conquest, says Gurdon (on Courts-Baron, p. 
589), grants were enrolled in the shire-book in pub- 
lic shire mote, after proclamation made for any to 
come in that could claim the lands conveyed ; and 
this was as irreversible as the modern fine with 
proclamations or recovery. This may be so ; but 
the county-court has at least long ceased to be 
a court of record ; and one would ask for proof 
of the assertion. The book kept in the church of 
St. Ethelbert, wherein Thurkil is said to have in- 
eerted the proceedings of the county-court, may or 
may not have been a public record. 

t Id., p. 3. Leges Henr. Primi, c. 29. 

t Leges Eadgari, p. 77 ; Canuti, p. 136 ; Henrici 
Primi, c. 34. I quote the latter freely as Anglo- 
Saxon, though posterior to the conquest; their 
spirit being perfectly of the former period. 

^ Dissertatio Epistolaris, p. 5. 



who, either by way of appeal from the 
lower courts, or in excepted cases, form- 
ed a paramount judicature ; but how their 
court was composed under the Anglo- 
Saxon sovereigns I do not pretend to 
assert.* 

It had been a prevailing opinion, that 
trial by jury may be referred to the xriai by 
Anglo-Saxon age, and common ^"n- 
tradition has ascribed it to the wisdom 
of Alfred. In such an historical deduc- 
tion of the Enghsh government as I have 
attempted, an institution so peculiarly 
characteristic deserves every attention 
to its origin ; and I shall therefore pro- 
duce the evidence which has been sup- 
posed to bear upon this most eminent 
part of our judicial system. The first 
text of the Saxon laws which may ap- 
pear to have such a meaning is in those 
of Alfred. " If any one accuse a king's 
thane of homicide, if he dare to purge 
himself (ladian), let him do it along with 
twelve king's thanes. If any one accuse 
a thane of less rank (laessa maga) than a 
king's thane, let him purge himself along 
with eleven of his equals, and one king's 
thane. "t This law, which Nicholson 
contends can mean nothing but trial by 
jury, has been referred by Hickes to that 
ancient usage of compurgation, where 
the accused sustained his own oath by 
those of a number of his friends, who 
pledged their knowledge, or at least their 
belief of his innocence. J 

In the canons of the Northumbrian 
clergy, we read as follows : " If a king's 
thane deny this (the practice of heathen 
superstitions), let twelve be appointed 
for him, and let him take twelve of his 
kindred (or equals, maga) and twelve 
British strangers ; and if he fail, then let 
him pay for his breach of law twelve half- 
marcs : If a landholder (or lesser thane) 
deny the charge, let as many of his equals 
and as many strangers be taken as for a 
royal thane ; and if he fail let him pay 
six half-marcs : If a ceorl deny it, let as 
many of his equals and as many stran- 
gers be taken for him as for the others ; 



* Madox, History of the Exchequer, p. 65, will 
not admit the existence of any court analogous to 
the Curia Regis before the conquest ; all pleas be- 
ing determined in the county. There are, how- 
ever, several instancesof decisions before the king; 
and in some cases it seems that the wittenagemot 
had a judicial authority. — Leges Canuti, p. 135, 
136. Hist. Eliensis. p. 469. Chron. Sax., p. 169. 
In the Leges Henr. I., c. 10, the limits of the royal 
and local jurisdictions are defined as to criminal 
matters, and seem to have been little changed since 
the reign of Canute, p. 135. 

t Leges Alfredi, p. 47. 

t Nicholson, Prefatio ad Leges Anglo-Saxon. 
Wilkinsii, p. 10. Hickes, Dissertatio Epistolaris. 



326 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



and if he fail, let him pay twelve orae for 
his breach of law."* It is difficult at first 
sight to imagine tliat these thirty-six so 
selected were merely compurgators, since 
it seems absurd that the judge should 
name indifferent persons, who, without 
inquiry, were to make oath of a party's 
innocence. Some have therefore con- 
ceived, that in this and other instances 
where compurgators are mentioned, they 
were virtually jurors, who, before attest- 
ing the facts, were to inform their con- 
sciences by investigating them. There 
are, however, passages in the Saxon 
laws nearly parallel to that just quoted, 
which seem incompatible with this in- 
terpretation. Thus, by a law of Athel- 
stan, if any one claimed a stray ox as his 
own, five of his neighbours were to be 
assigned, of whom one was to maintain 
the claimant's oath.f Perhaps the prin- 
ciple of these regulations, and indeed of 
the whole law of compurgation, is to be 
found in that stress laid upon general 
character which i>ervades the Anglo- 
Saxon jurisprudence. A man of ill rep- 
utation was compelled to undergo a triple 
ordeal, in cases where a single one suffi- 
ced for persons of credit ; a provision 
rather inconsistent with the trust in a 
miraculous interposition of Providence 
which was the basis of that superstition. 
And the law of frank-pledge proceeded 
upon the maxim that the best guarantee 
of every man's obedience to the govern- 
ment was to be sought in the confidence 
of his neighbours. Hence, while some 
compurgators were to be chosen by the 
sheriff, to avoid partiality and collusion, 
it was still intended that they should be 
residents of the vicinage, witnesses of 
the defendant's previous life, and compe- 
tent to estimate the probability of his ex- 
culpatory oath. For the British stran- 
gers, in the canon quoted above, were 
certainly the original natives, more inter- 
mingled with their conquerors, probably, 
in the provinces north of the Humber 
than elsewhere, and still denominated 
strangers, as the distinction of races was 
not done away. 

If in this instance we do not feel our- 
selves warranted to infer the existence 
of trial by jury, still less shall we find 
even an analogy to it in an article of the 
treaty between England and Wales du- 
ring the reign of Ethelred II. " Twelve 
persons skilled in the law (lahmen), six 
English and six Welsh, shall instruct 
the natives of each country, on pain of 

* Wilkins, p. 100. 

t Leges Athelstani, p. 58. 



forfeiting their possessions, if, except 
through ignorance, they give false infoi-- 
mation."* This is obviously but a regu- 
lation intended to settle disputes among 
the Welsh and English, to which tlicir 
ignorance of each other's customs might 
give rise. 

By a law of the same prince, a court 
was to be held in every wapentake, 
where the sheriff and twelve principal 
thanes should swear that they would nei- 
ther acquit any criminal, nor convict any 
innocent person. f It seems more prob- 
able that these thanes were permanent 
assessors to the sheriff, like the scabini 
so frequently mentioned in the early 
laws of France and Italy, than jurors in 
discriminately selected. This passage, 
however, is stronger than those which 
have been already adduced; and it may 
be thought, perhaps with justice, that at 
least the seeds of our present form of 
trial are discoverable in it. In the his- 
tory of Ely, we twice read of pleas held 
before twenty-four judges in the court of 
Cambridge ; which seems to have been 
formed out of several neighbouring hun- 
dreds. | 

But the nearest approach to a regular 
jury which has been preserved in our 
scanty memorials of the Anglo-Saxon 
age, occurs in the history of the monas- 
tery of Ramsey. A controversy relating 
to lands between that society and a cer- 
tain nobleman was brought into the coun- 
ty-court; when each party was heard 
in his own behalf. After this commence- 
ment, on account probably of the length 
and difficulty of the investigation, it was 
referred by the court to thirty-six thanes, 
equally chosen by both sides. i^ And here 
we begin to perceive the manner in 
which those tumultuous assemblies, the 
mixed body of freeholders in their coun- 
ty-court, slid gradually into a more 
steady and more diligent tribunal. But 
this was not the work of a single age. 
In the Conqueror's reign we find a pro- 
ceeding very similar to the case of Ram- 
sey, in which the suit has been commen- 
ced in the county-court, before it was 
found expedient to remit it to a select 
body of freeholders. In the reign of 
William Rufus, and down to that of Hen- 
ry II., when the trial of writs of light by 
the grand assize was introduced, Hickes 
has discovered other instances of the ori- 
ginal usage. II The language of Domes- 



* Leges Ethelredi, p. 125. f P. 1 17. 

t Hist. Eliensis, in Gale's Scriptores, t. iii., p 
471 and 478. 

1^ Hist. Ramsey, id., p. 415. 

II Hickesii Dissertatio Epistolaris, p. 33, 38. 



Part I.] 



ENGLISH CONSTITUTION. 



327 



day Book lends some confirmation to 
its existence at the time of that survey ; 
and even our common legal expression 
of trial by the country seems to be deri- 
ved from a period when the form was lit- 
erally popular. 

In comparing the various passages 
■which I have quoted, it is impossible not 
to be struck with the prel'erence given to 
t,welve, or some multiple of it, in fixing 
the number either of judges or compur- 
gators. This was not peculiar to Eng- 
land. Spelman has produced several in- 
stances of it in the early German laws. 
And that number seems to have been re- 
garded with equal veneration in Scandi- 
navia.* It is very immaterial from what 
caprice or superstition this predilection 
arose. But its general prevalence shows 
that, in searching for the origin of trial 
by jury, we cannot rely for a moment 
upon any analogy wliich the mere num- 
ber affords. I am induced to make this 
observation, because some of the pas- 
sages which have been alleged by emi- 
nent men for the purpose of establishing 
the existence of that institution before 
the conquest, seem to have little else to 
support them. 

There is certainly no part of the Anglo- 
Law of Saxon polity which has attracted 
frank- SO much the notice of modern 
pledge. tj,^gg as the law of frank-pledge, 
or mutual responsibility of the members 
of a tithing for each other's abiding the 
course of justice. This, like the distribu- 
tion of hundreds and tithings themselves, 
and like trial by jury, has been generally 
attributed to Alfred; and of this, I sus- 
pect, we must also deprive him. It is 
not surprising that the great services of 
Alfred to his people in peace and in war 
should have led posterity to ascribe every 
institution, of which the beginning was 
obscure, to his contrivance, till his fame 
has become almost as fabulous in legisla- 
tion as that of Arthur in arms. The Eng- 
lish nation redeemed from servitude, and 
their name from extinction ; the lamp of 
learning refreshed, when scarce a glim- 
mer was visible ; the watchful observance 
of justice and public order; these are the 
genuine praises of Alfred, and entitle him 
to the rank he has always held in men's 
esteem, as the best and greatest of Eng- 
lish kings. But of his legislation there is 
little that can be asserted with sufficient 
evidence ; the laws of his time that re- 
main are neither numerous nor particu- 
larly interesting ; and a loose report of 

* Spelman's Glossary, voc. Jurata. Du Gauge, 
voc. Nembda. Edinb. Review, vol. xx.'ci., p. 115: 
a most learned and elaborate essay. 



late writers is not sufficient to prove that 
he compiled a dom-boc, or general code 
for the government of his kingdom. 

An ingenious and philosophical writer 
has endeavoured to found the law of 
frank-pledge upon one of those general 
principles to which he always loves to 
recur. " If we look upon a tithing," he 
says, " as regularly composed of ten fam- 
ilies, this branch of its police will appeal 
in the highest degree artificial and sin- 
gular ; but if we consider that society as 
of the same extent with a town or vil- 
lage, we shall find that such a regulation 
is conformable to the general usage of 
barbarous nations, and is founded upon 
their common notions of justice."* A 
variety of instances are then brought for- 
ward, drawn from the customs of almost 
every part of the world, wherein the in- 
habitants of a district have been made 
answerable for crimes and injuries impu- 
ted to one of them. But none of these 
fully resemble the Saxon institution of 
which we are treating. They relate ei- 
ther to the right of reprisals, exercised 
with respect to the subjects of foreign 
countries, or to the indemnification ex- 
acted from the district, as in our modern 
statutes, which give an action in certain 
cases of felony against the hundred, for 
crimes which its internal police was sup- 
posed capable of preventing. In the Irish 
custom, indeed, which bound the head of 
a sept to bring forward every one of his 
kindred who should be charged with any 
heinous crime, we certainly perceive a 
strong analogy to the Saxon law, not as 
it latterly subsisted, but under one of its 
prior modifications. For I think that 
something of a gradual progression may 
be traced to the history of this famous 
police, by following the indications af- 
forded by those laws through which alone 
we become acquainted with its exist- 
ence. 

The Saxons brought with them from 
their original forests at least as much 
roughness as any of the nations wiiich 
overturned the Roman empire ; and their 
long struggle with the Britons could not 
contribute to polish their manners. The 
royal authority was weak ; and little had 
been learned of that regular system of 
government which the Franks and Lom- 
bards acquired from the provincial Ro- 
mans, among whom they were mingled. 
No people were so much addicted to rob- 
bery, to riotous frays, and to feuds ari- 
sing out of family revenge, as the Anglo 



* Millar on the English Government, vol. i., p, 
189. 



328 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



Saxons. Their statutes are filled with 
comp-laints that the public peace was 
openly violated, and with penalties which 
seem, by their repetition, to have been 
disregarded. The vengeance taken by 
the kindred of a murdered man was a sa- 
cred right which no law ventured to for- 
bid, though it was limited by those which 
established a composition, and by those 
which protected the family of the mur- 
derer from their resentment. Even the 
author of the laws ascribed to the Con- 
feSsor speaks of this family warfare, 
where the composition had not been paid, 
as perfectly lawful.* But the law of com- 
position tended probably to increase the 
number of crimes. Tlaough the sums 
imposed were sometimes heavy, men 
paid them with the help of their relations, 
or entered into voluntary associations, 
the purposes whereof might often be 
laudable, but which were certainly sus- 
ceptible of this kind of abuse. And many 
led a life of rapine, forming large parties 
of ruffians, who committed murder and 
robbery with little dread of punishment. 

Against this disorderly condition of so- 
ciety, the wisdom of our English kings, 
with the assistance of their great coun- 
cils, was employed in devising remedies, 
which ultimately grew up into a peculiar 
system. No man could leave the shire 
to which he belonged without the per- 
mission of its alderman. f No man could 
be without a lord, on whom he depended ; 
though he might quit his present patron, 
it was under the condition of engaging 
himself to another. If he failed in this, 
his kindred were bound to present him in 
the county-court, and to name a lord for 
him themselves. Unless this were done, 
he might be seized by any one who met 
him as a robber.| Hence, notwithstand- 
ing the personal liberty of the peasants, 
it was not very practicable for one of 
them to quit his place of residence. A 
stranger guest could not be received 
more than two nights as such; on the 
third the host became responsible for his 
mmate's conduct.^ 

The peculiar system of frank-pledges 
seems to have passed through the follow- 
ing very gradual stages. At first an ac- 
cused person was obliged to find bail|| for 



* Parentibus occisi fiat emendatio, vel guerra 
eorum portetur.— Wilkins, p. 199. This, bke many 
other parts of that spurious treatise, appears to 
have been taken from some older laws, or at least 
traditions. I do not conceive that this private re- 
venge was tolerated by law after the conquest. 

+ Leges Alfredi, c. 33. 

t Leges Athelstani, p. 56. 

<} Leges Edwardi Confess., p. 202. 

II Leges Lotharii [regis Cantii], p. 8. 



standing his trial. At a subsequent pe- 
riod his relations were called upon to 
become sureties for payment of the com- 
position and other fines to which he was 
liable.* They were even subject to be 
imprisoned until payment was made, and 
this imprisonment was commutable for a 
certain sum of money. The next stage 
was to make persons already convicted, 
or of suspicious repute, give sureties for 
their future behaviour. f It is not till the 
reign of Edgar that we find the first gen- 
eral law, which places every man in the 
condition of the guilty or suspected, and 
compels him to find a surety, who shall 
be responsible for his appearance when 
judicially summoned. J This is perpetu- 
ally repeated and enforced in later stat- 
utes, during his reign and that of Ethelred. 
Finally, the laws of Canute declare the . 
necessity of belonging to some hundred 
and tithing, as well as of providing sure- 
ties ;^ and it may, perhaps, be inferred, 
that the custom of rendering every mem- 
ber of a tithing answerable for the ap- 
pearance of all the rest, as it existed 
after the conquest, is as old as the reign 
of this Danish monarch. 

It is by no means an accurate notion 
which the writer to whom I have already 
adverted has conceived, that " the mem- 
bers of every tithing were responsible 
for the conduct of one another ; and that 
the society, or their leader, might be 
prosecuted and compelled to make repa- 
ration for an injury committed by any in- 
dividual." Upon this false apprehension 
of the nature of frank-pledges the whole 
of his analogical reasoning is founded. 
It is indeed an error very current in pop- 
ular treatises, and which might plead 
the authority of some whose professional 
learning should have saved them from so 
obvious a misstatement. But, in fact, the 
members of a tithing were no more than 
perpetual bail for each other. " The 
greatest security of the public order (says 
the laws ascribed to the Confessor), is 
that every man must bind himself to one 
of those societies which the English in 
general call freeborgs, and the people of 
Yorkshire ten men's tale."|| This con- 
sisted in the responsibility of ten men, 
each for the other, throughout every vil- 
lage in the kingdom ; so that if one of 
the ten committed any fault, the nine 
should produce him in justice ; where he 
should make reparation by his own prop- 



* Leges Edwardi Senioris, p. 53. 

t Leges Athelstani, p. 57, c. 6, 7, 8. 

X Leges Eadgari, p. 78. 

() Leges Canuti, p. 137. 

II Leges Edwardi, in Wilkins, p. 201, 



I'ART I] 



ENGLISH CONSTITUTION. 



329 



erty or by personal punishment. If he 
fled from justice, a mode was provided, 
according to which the tithing might 
clear themselves from participation in 
his crime or escape ; in default of such 
exculpation, and the malefactor's estate 
proving deficient, they were compelled to 
make good the penalty. And it is equal- 
ly manifest from every other passage in 
Avhich mention is made of this ancient in- 
stitution, that the obligation of the tithing 
was merely that of permanent bail, re- 
sponsible only indirectly for the good be- 
haviour of their members. 

Every freeman above the age of twelve 
years was required to be enrolled in 
some tithing.* In order to enforce this 
essential part of police, the courts of the 
tourn and Icet were erected, or rather, 
perhaps, separated from that of the coun- 
ty. The periodical meetings of these, 
whose duty it was to inquire into the 
state of tithings, whence they were call- 
ed the view of frank-pledge, are regula- 
ted in Magna Charta. But this custom, 
which seems to have been in full vigour 
when Bracton wrote, and is enforced by 
a statute of Edward II., gradually died 
away in succeeding times. f According 
to the laws ascribed to the Confessor, 
which are perhaps of insufficient author- 
ity to fix the existence of any usage be- 
fore the conquest, lords, who possessed 
a baronieil jurisdiction, were permitted to 
keep their military tenants and the ser- 
vants of their household under their own 
peculiar frank-pledge. | Nor was any 
freeholder, in the age of Bracton, bound 
to be enrolled in a tithing. 

It remains only, before we conclude 
this sketch of the Anglo-Saxon 
nures*wh'eth- system, to consider the once 
er known be- famous question respecting 
quest'"^ ""'"" the establishment of feudal te- 
nures in England before the 
conquest. The position asserted by Sir 
Henry Spelman in his Glossary, that 
lands were not held feudally before that 
period, having been denied by the Irish 
judges in the great case of tenures, he 
was compelled to draw up his treatise on 
feuds, in which it is more fully maintain- 
ed. Several other writers, especially 

* Leges Canuti, p. 136. 

t Slat. 18 E. II. Traces of the actual view of 
frank-pledge appear in Cornwall as late as the lOlh 
of Henry V[., Rot. Parliarn., vol. iv., p. 403. And 
indeed Selden tells us (Janus Anglorum, t. ii., p. 
993), that It was not quite obsolete in his time. 
The form may, for aught I know, be kept up in 
some parts of England at this day. For some rea- 
son which I caimot explain, the distribution by 
tens was changed into one by dozens. — Britton, c. 
29, and Stat. 18 E. II. J P. 202. 



Hickes, Madox, and Sir Martin Wright, 
have taken the same side. But names 
equally respectable might be thrown into 
tiie opposite scale ; and I think the pre- 
vaihng bias of modern antiquaries is in 
favour of at least a modified affirmative 
as to this question. 

Lands are commonly supposed to have 
been divided among the Anglo-Saxons 
into bocland and folkland. The former 
was held in full propriety, and might be 
conveyed by boc or written grant ; the 
latter was occupied by the common peo- 
ple, yielding rent or other service, and 
perhaps without any estate in the land, 
but at the pleasure of the owner. These 
two species of tenure might be compared 
to freehold and copyhold, if the latter had 
retained its original dependance upon the 
will of the lord.* Bocland was devisable 
by will ; it was equally shared among the 
children ; it was capable of being entailed 
by the person under whose grant it was 
originally taken ; and, in case of a treach- 
erous or cowardly desertion from the 
army, it was forfeited to the crown. f 

It is an improbable, and even extrava- 
gant supposition, that all these hereditary 
estates of the Anglo-Saxon freeholders 
were originally parcels of the royal de- 
mesne, and consequently that the king 
was once the sole proprietor in his king- 
dom. Whatever partitions were made 
upon the conquest of a British province, 
we may be sure that the shares of the 
army were coeval with those of the gen- 
eral. The great mass of Saxon property 
could not have been held by actual bene- 
ficiary grants from the crown. However, 
the royal demesnes were undoubtedly 
very extensive. They continued to be 
so even in the time of the Confessor, 
after the donations of his predecessors. 
And several instruments granting lands 
to individuals, besides those in favour of 
the church, are extant. These are gen- 
erally couched in that style of full and 
unconditional conveyance, whicli is ob- 
servable in all such charters of the same 

* This supposition may plead the great authori- 
ties of Somner and Lye, the Anglo-Saxon lexicog- 
raphers, and appears to me far more probable than 
the theory of Sir John Dalrymple, m his Essay on 
Feudal Property, or that of the author of a dis- 
course on the Bocland and Folkland of the Saxons, 
1775, whose name, I think, was Ibbetson. The 
first of these supposes bocland to have been feudal, 
and folkland allodial ; the second most strangely 
takes folkland for feudal. I cannot satisfy myself 
whether thainland and reveland, which occur 
sometimes in Domesday Book, merely correspond 
with the other two denominations. 

t Wilkins, p. 43, 145. The latter law is copied 
from one of Charlemagne's Capitularies. — Baluze 
p. 767. 



330 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII 



age upon the continent. Some excep- 
tions, however, occur ; the lands be- 
queathed by Alfred to certain of his no- 
bles were to return to his family in de- 
fault of male heirs ; and Hickes is of 
opinion that the royal consent, which 
seems to have been required for the tes- 
tamentary disposition of some estates, 
was necessary on account of their bene- 
ficiary tenure.* 

All the freehold lands of England, ex- 
cept some of those belonging to the 
church, were subject to three great public 
burdens ; military service in the king's 
expeditions, or at least in defensive war,f 
the repair of bridges, and that of royal 
fortresses. These obligations, and espe- 
cially the first, have been sometimes 
thought to denote a feudal tenure. There 
is, however, a confusion into which we 
may fall by not sufficiently discriminating 
the rights of a king as chief lord of his 
vassals, and as sovereign of his subjects. 
In every country, the supreme power is 
entitled to use the arm of each citizen 
in the public defence. The usage of all 
nations agrees with common reason in 
establishing this great principle. There 
is nothing, therefore, peculiarly feudal in 
this militaiy service of landholders ; it 
was due from the allodial proprietors 
upon the continent ; it was derived from 
their German ancestors ; it had been fixed, 
probably, by the legislatures of the Hep- 
tarchy upon the first settlement in Brit- 
ain. 

It is material, however, to observe, that 
a thane forfeited his hereditary freehold 
by misconduct in battle ; a penalty more 
severe than was inflicted upon allodial pro- 
prietors on the continent. We even find 
in the earliest Saxon laws, that the sith- 
cundman, who seems to have correspond- 
ed to the inferior thane of later times, for- 
feited his land by neglect of attendance 
in war ; for which an allodialist in France 
would only have paid his heribannum, or 
penalty. I Nevertheless, as the policy of 
different states may enforce the duties 
of subjects by more or less severe sanc- 
tions, I do not know that a law of for- 
feiture in such cases is to be considered 
as positively implying a feudal tenure. 

But a much stronger presumption is 
afforded by passages that indicate a mu- 



* Dissertatio Epistolaris, p. 60. 

t This duty is by some expressed rata expedi- 
tio ; by others, hostis propulsio, which seems to 
make no small difference. But, unfortunately, 
most of the military service which an Anglo-Saxon 
freeholder had to render was of the latter kind. 

J Leges Inae, p. 23. Du Cange, voc. Heribannum. 
By the laws of Canute, p. 135, a fine only was im- 
posed for this offence. 



tual relation of lord and vassal among the 
free proprietors. The most powerful sub- 
jects have not a natural Kght to the ser- 
vice of other freemen. But in the laws 
enacted during the Heptarchy, we find 
it hinted thai the sithcundman, or petty 
gentleman, might be dependar^t on a su- 
perior lord.* This is more distinctly ex- 
pressed in some ecclesiastical canons, 
apparently of the tenth century, which 
distinguish the king's thane from the 
landholder, who depended upon a lord.f 
Other proofs of this might be brought 
from the Anglo-Saxon laws. J It is not, 
however, sufficient to prove a mutual re- 
lation between the higher and lower or- 
der of gentry, in order to establish the 
existence of feudal tenures. For this re- 
lation was often personal, as I have men- 
tioned more fully in another place, and 
bore the name of commendation. And 
no nation was so rigorous as the English 
in compelling every man, from the king's 
thane to the ceorl, to place himself under 
a lawful superior. Hence the question 
is not to be hastily decided on the credit 
of a few passages that express this gra- 
dation of dependance ; feudal vassalage, 
the object of our inquiry, being of a real, 
not ?i personal WAiure, and resulting entire- 
ly from the tenure of particular lands. But 
it is not unlikely that the personal rela- 
tion of client, if I may use that word, 
might in a multitude of cases be changed 
into that of vassal. And certainly many 
of the motives which operated in France 
to produce a very general commutation 
of allodial into feudal tenure might have 
a similar influence in England, where the 
disorderly condition of society made it 
the interest of every man to obtain the 
protection of some potent lord. 

The word thane corresponds in its de- 
rivation to vassal ; and the latter term is 
used by Asserius, the contemporary bi- 
ographer of Alfred, in speaking of the 
nobles of that prince."^ In their attend- 
ance, too, upon the royal court, and the 
fidelity which was expected from them, 
the king's thanes seem exactly to have 
resembled that class of followers who, 
under different appellations, were the 
guards as well as courtiers of the Frank 
and Lombard sovereigns. But I have 
remarked that the word thane is not ap- 

* Leges Inae, p. 10, 23. t Wilkins, p. 101. 

$ P. 71,144, 145. 

ij Alfredus cum paucis suis nobilibus, et etiam 
cumquibusdam militibus et Vassallis, p. 166. No- 
biles Vassalli Sumertunensis pagi, p. 167. Yet 
Hickes objects to the authenticity of a charter as. 
cribed to Edgar, because it contains the word Vas- 
sallus, " quam a Nortmannis Angli habuerunt."— 
Dissertatio Epistol., p. 7. 



Part I.] 



ENGLISH CONSTITUTION. 



331 



plied to the whole body of gentry in the 
more ancient laws, where the word eorl 
is opposed to the ceorl or roturier, and 
that of sithcundman* to the royal thane. 
It would be too much to infer from the 
extension of this latter word to a large 
class of persons, that we should interpret 
it with a close attention to etymology, a 
very uncertain guide in almost all inves- 
tigations. 

For the age immediately preceding the 
Norman invasion, we cannot have re- 
course to a better authority than Domes- 
day Book. That incomparable record 
contains the names of every tenant, and 
the conditions of his tenure, under the 
Confessor, as well as the time of its com- 
pilation; and seems to give httle coun- 
tenance to the notion that a radical 
change in the system of our laws had 
been effected during the interval. In al- 
most every page, we meet with tenants 
either of the crown, or of other lords, 
denominated thanes, freeholders (liberi 
homines) or soccagers (socmanni) . Some 
of these, it is stated, might sell their 
lands to whom they pleased ; others were 
restricted from alienation. Some, as it is 
expressed, might go with their lands 
whither they would ; by which 1 under- 
stand the right of commending themselves 
to any patron of their choice. These, 
of course, could not be feudal tenants in 
any proper notion of that term. Others 
could not depart from the lord whom 
they served ; not certainly that they 
were personally bound to the soil, but so 
long as they retained it, the seigniory of 
the superior could not be defeated.! ^ut 



♦ Wilkins, p. 3, 7, 23, &c. This is an obscure 
word, occurring only, I believe, during the Hep- 
tarchy. Wilkins translates it, praepositus paganus, 
which gives a wrong idea. But gesith, which is 
plainly the same word, is used in Alfred's transla- 
tion of Bede for a gentleman or nobleman. Where 
Bede uses comes, the Saxon is always gesith or 
gesithman ; where princeps or dux occurs, the ver- 
sion is ealdorman.— Selden's Titles of Honour, p. 
C43. 

•f It sometimes weakens a proposition which is 
capable of innumerable proofs to take a very few 
at random : yet the following casual specimens will 
illustrate the common language of Domesday Book. 

Haec tria maneria tenuit Ulveva tempore regis 
Edwardiet potuitirecum terra quo volebat, p. 85. 

Toll emit earn T. R. E. (temp, regis Edwardi) 
de ecclesia Malmsburiensi ad aetatem trium homi- 
num ; et infra hunc terminum poterat ire cum ea 
ad quern vellet dominum, p. 72. 

Tres Angli tenuerunt Darneford T. R. E. et non 

Eolerant ab ecclesia separari. Duo ex iis redde- 
ant v solidos, et tertius serviebat sicut Thainus, 
p. 68. 

Has terras qui tenuerunt T. R. E. quo voluerunt 
ire poterunt, praeter unum Seric vocatum, qui in 
Ragendal tenuit iii carucatas terr« ; sed non poterat 
cum ek alicubi recedere, p. 335. 



I am not aware that military service is 
specified in any instance to be due from 
one of these tenants ; though it is difficult 
to speak as to a negative proposition of 
this kind with any confidence- 
No direct evidence appears as to the 
ceremony of homage or the oath of feal- 
ty before the conquest. The feudal ex- 
action of aid in certain prescribed cases 
seems to have been unknown. Still less 
could those of wardship and marriage 
prevail, which were no parts of the great 
feudal system, but introduced, and per- 
haps invented, by our rapacious Norman 
tyrants. The English lawyers, through 
an imperfect acquaintance with the his- 
tory of feuds upon the continent, have 
treated these unjust innovations as if they 
had formed essential parts of the system, 
and sprung naturally from the relation 
between lord and vassal. And, with ref- 
erence to the present question. Sir Hen- 
ry Spelman has certainly laid too much 
stress upon them in concluding that feu- 
dal tenures did not exist among the An- 
glo-Saxons, because their lands were not 
in ward, nor their persons sold in mar- 
riage. But I cannot equally concur with 
this eminent person in denying the ex- 
istence of reliefs during the same period. 
If the heriot, which is first mentioned in 
the time of Edgar* (though it may prob- 
ably have been an established custom 
long before), were not identical with 
the relief, it bore at least a very strong 
analogy to it. A charter of Ethelred's 
interprets one word by the other, f In 
the laws of William, which re-enact 
tliose of Canute concerning heriots, the 
term relief is employed as synonymous.^ 
Though the heriot was in later times 
paid in chattels, the relief in money, it is 
equally true that originally the law fixed 
a sum of money in certain cases for the 
heriot, and a chattel for the relief. And 
the most plausible distinction alleged by 
Spelman, that the heriot is by law due 
from the personal estate, but the relief 
from the heir, seems hardly applicable to 
that remote age, when the law of succes- 
sion as to real and personal estate was 
not different. 

It has been shown, in another place, 
how the right of territorial jurisdiction 
was generally, and at last inseparably, 
connected with feudal tenure. Of this 
right we meet frequent instances in the 
laws and records of the Anglo-Saxons, 
though not in those of an early date. A 
charter of Edred grants to the monastery 



* Selden's Works, vol. ii., p. 1620. 

+ Hist. Ramseyens, p. 430. 

i J'Apes Canuti, p. 144, Leges Gulielmi, p. 223. 



332 



EUROPE DURING THE MIDDLE AGES. 



Chap. VIII. 



of Croyland soc, sac, toll, team, and in- 
fangthef; words which generally went 
together in the description of these privi- 
leges, and signify the right of holding a 
court to which all freemen of the terri- 
tory should repair, of deciding pleas 
therein, as well as of imposing amerce- 
ments according to law, of taking tolls 
upon the sale of goods, and of punishing 
capitally a thief taken in the fact within 
the limits of the manor.* Another char- 
ter from the confessor grants to the ab- 
bey of Ramsey similar rights over all 
who were suiters to the sheriff's court, 
subject to military service, and capable 
of landed possessions ; that is, as I con- 
ceive, all who were not in servitude.! By 
a law of Ethelred, none but the king could 
have jurisdiction over a royal thane. J 
And Domesday Book is full of decisive 
proofs, that the English lords had their 
courts wherein they rendered justice to 
their suiters, like the continental nobility ; 
privileges which are noticed with great 
precision in that record, as part of the 
statistical survey. For the right of juris- 
diction at a time when punishments were 
almost wholly pecuniary, was a matter 
of property, and sought from motives of 
rapacity as well as pride. 

Whether, therefore, the law of feudal 
tenures can be said to have existed in 
England before the conquest, must be left 
to every reader's determination. Per- 
haps any attempt to decide it positively 
would end in a verbal dispute. In tracing 
the history of every political institution, 
three things are to be considered : the 
principle, the form, and the name. The 
last will probably not be found in any 
genuine Anglo-Saxon record.^ Of the 
former, or the peculiar ceremonies and 
incidents of a regular fief, there is some, 
though not much appearance. But those 
who reflect upon the dependance in which 
free and even noble tenants held their 
estates of other subjects, and upon the 



* Ingulfus, p. 35. I do not pretend to assert the 
E.uthenticity of these charters, which at all events 
are nearly as old as the conquest. Hickes calls 
most of them in question. — Dissert. Epist., p. 66 : 
but some later antiquaries seem to have been more 
favourable. — Archaeologia, vol. xviii., p. 49. Nou- 
veau Traite de Diplomatique, t. i., p. 348. 

+ Hist. Ramsey, p. 454. 

j P. 118. This is the earliest allusion, if I am 
not mistaken, to territorial jurisdiction in the Sax- 
on laws. Probably it was not frequent till near the 
end of the tenth century. 

^ Feodum twice occurs in the testament of Al- 
fred ; but it does not appear to be used in its proper 
sense, nor do I apprehend that instrument to have 
been originally written in Latin. It was much 
more consonant to Alfred's practice to employ his 
own language. 



privileges of territorial jurisdiction, will, 
I think, perceive much of the intrinsic 
character of the feudal relation, though 
in a less mature and systematic shape 
than it assumed after the Norman con- 
quest. 



PART II. 

THE ANGLO-NORMAN CONSTITUTION. 

The Anglo-Norman Constitution. — Causes of the 
Conquest. — Policy and character of William — 
his Tyranny. — Introduction of Feudal Services. 
— Difference between the Feudal Governments 
of France and England. — Causes of the great 
Power of the first Norman Kings.— Arbitrary 
Character of their Government. — Great Council. 
— Resistance of the Barons to John. — Magna 
Charta — its principal Articles. — Reign of Henry 
III. — The Constitution acquires a more liberal 
Character. — .Judicial System of the Anglo-Nor- 
mans. — Curia Regis, Exchequer, &c. — Estab- 
lishment of the Common Law — its effect in 
fixing the Constitution. — Remarks on the Lim- 
itation of Aristocratical Privileges in England. 

It is deemed by William of Malmsbury 
an extraordinary work of Prov- conqiiestof 
idence, that the English should England by 
have given up all for lost after ^'"'^m. 
the battle of Hastings, where only a 
small though brave army had perished.* 
It was indeed the conquest of a great 
kingdom by the prince of a single prov- 
ince, an event not easily paralleled, where 
the vanquished were little, if at all, less 
courageous than their enemies, and where 
no domestic factions exposed the country 
to an invader. Yet William was so ad- 
vantageously situated, that his success 
seems neither unaccountable nor any 
matter of discredit to the English nation. 
The heir of the house of Cerdic had been 
already set aside at the election of Ha- 
rold ; and his youth, joined to a medioc- 
rity of understanding which excited nei- 
ther esteem nor fear,t gave no encour- 
agement to the scheme of placing him 
upon the throne in those moments of 
imminent peril which followed the battle 
of Hastings. England was peculiarly des- 
titute of great men. The weak reigns 



* Malmsb., p. 53. And Henry of Huntingdon 
says emphatically : Millesimo et sexagesimo sexto 
anno gratise, perfecit dominator Deus de gente An- 
glorum quod diu cogitaverat. — Genti namque Nor- 
mannorum asperse et callidae tradidit eos ad exter- 
minandum, p. 210. 

t Edgar, after one or two ineffectual attempts 
to recover the kingdom, was treated by William 
with a kindness which could only have proceeded 
from contempt of his understanding; for he was 
not wanting in courage. He became the ir:timate 
friend of Robert, duke of Normandy, whose for- 
tunes, as well as character, much resembled his 
own. 



Part II.] 



ENGLISH CONSTITUTION. 



333 



of Ethelred and Edward had rendered 
the government a mere oligarchy, and 
reduced the nobility into the state of 
retainers to a few leading houses, the 
representatives of which were every way 
unequal to meet such an enemy as the 
Duke of Normandy. If indeed the con- 
current testimony of historians does not 
exaggerate his forces, it may be doubted 
whether England possessed military re- 
sources sufficient to have resisted so nu- 
merous and well-appointed an array. 

This forlorn state of the country indu- 
ced, if it did not justify, the measure of 
tendering the crown to WiUiara, which 
he had a pretext or title to claim, arising 
from the intentions, perhaps the promise, 
perhaps even the testament of Edward, 
which had more weight in those times 
than it deserved, and was at least better 
than the naked title of conquest. And 
this, supported by an oath exactly similar 
to that taken by the Anglo-Saxon kings, 
and by the assent of the multitude, Eng- 
lish as well as Normans, on the day of 
his coronation, gave as much appearance 
of a regular succession as the circum- 
stances of the times would permit. Those 
who yielded to such circumstances could 
not foresee, and were unwilling to antici- 
pate, the bitterness of that servitude which 
WilUam and his Norman followers were 
to bring upon their country. 

The commencement of his adminis- 
His conduct tration was tolerably equita- 
at first mod- ble. Though many contisca- 
*''^'^- tions took place, in order to 

gratify the Norman army, yet the mass 
of property was left in the hands of its 
former possessors. Offices of high trust 
were bestowed upon Englishmen, even 
upon those whose family renown might 
have raised the most aspiring thoughts.* 
It becomes But partly through the inso- 
more tyran- lence and injustice of William's 
meal. Norman vassals, partly through 

the suspiciousness natural to a man con- 
scious of having overturned the national 
government, his yoke soon became more 
heavy. The English were oppressed ; 
they rebelled, were subdued, and op- 
pressed again. All their risings were 
without concert, and desperate ; they 
wanted men fit to head them, and for- 
tresses to sustain their revolt. f After a 



* Ordericus Vitalis, p. 520 (in Du Chesne, Hist. 
Norm. Script.). 

■f Ordericus notices the want of castles in Eng- 
land, as one reason why rebellions were easily 
quelled, p. 511. Failing in their attempts at a gen- 
erous resistance, the English endeavoured to get 
rid of their enemies by assassination, to which 
many Normans became victims. William there- 
fore enacted, that in every case of murder, which 



very few years they sank in despair, and 
yielded for a century to the indignities of 
a comparatively small body of strangers 
without a single tumult. So possible is 
it for a nation to be kept in permanent 
servitude, even without losing its reputa- 
tion for individual courage, or its desire 
of freedom ! 

The tyranny of William displayed less 
of passion or insolence than of that in- 
difference about human suffering which 
distinguishes a cold and far-sighted states- 
man. Impressed by the frequent risings 
of the English at the commencement of 
his reign, and by the recollection, as one 
historian observes, that the mild govern- 
ment of Canute had only ended in the 
expulsion of the Danish line,* he formed 
the scheme of riveting such fetters upon 
the conquered nation that all resistance 
should become impracticable. Those 
who had obtained honourable offices were 
successively deprived of them ; even the 
bishops and abbots of English birth were 
deposed ;t a stretch of power very sin- 
gular in that age, and which marks how 
much the great talents of William made 
him feared by the church, in the moment 
of her highest pretensions, for Gregory 
VII. was in the papal chair. Morcar, 
one of the most illustrious English, suf- 
fered perpetual imprisonment. Walthe- 
off, a man of equally conspicuous birth, 
lost his head upon a scaffold by a very 
harsh, if not iniquitous sentence. It was 
so rare in those times to inflict judicially 
any capital punishment upon persons of 
such rank, that his death seems to have 
produced more indignation and despair in 
England than any single circumstance. 
The name of Englishman was turned into 
a reproach. None of that race for a hun- 
dred years were raised to any dignity in 
the state or church. J Their language, 
and the characters in which it was writ- 
ten, were rejected as barbarous ; in all 
schools, children were taught French, 

strictly meant the killing of any one by an un- 
known hand, the hundred should be liable in a fine, 
unless they could prove the person murdered to be 
an Englishman. This was tried by an inquest, 
upon what was called a presentment of Englishry. 
But from the reign of Henry H., the two nations 
having been very much intermingled, this inquiry, 
as we learn from the Dialogue de Scaccario, p. 26, 
ceased, and in every case of a freeman murdered 
by persons unknown, the hundred was fined. — See 
however Bracton, 1. iii., c. 15. 

* Malmsbury, p. 104. t Hoveden, p. 453. 

t Becket is said to have been the first English- 
man who reached any considerable dignity. — Lord 
Lyttleton's Hist, of Henry 11., vol. ii.. p. 22. And 
Eadmer declares that Henry I. would not place a 
single Englishman at the head of a monastery. Si 
Anglus erat, nulla virtus, ut honore aliquo dignuB 
judicaretur, eum poterat adjuvare, p. 110. 




334 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VJIL 



and the laws were administered in no 
other tongue.* It is well known that 
this use of French in all legal proceed- 
ings lasted till the reign of Edward III. 

This exclusion of the English from po- 
Confiscation litical privileges was accom- 
of Eiigiisii panied with such a confiscation 
property. ^^ property as never perhaps 
has proceeded from any government not 
avowedly founding its title upon the 
sword. In twenty years from the acces- 
sion of William, almost the whole soil 
of p]ngland had been divided among for- 
eigners. Of the native proprietors many 
had perished in the scenes of rapine and 
tyranny which attended this convulsion ; 
many were fallen into the utmost pover- 
ty; and not a few, certainly, still held 
their lands as vassals of Norman lords. 
Several English nobles, desperate of the 
fortunes of their country, sought refuge 
in the court of Constantinople, and ap- 
proved their valour in the wars of Alex- 
ius against another Norman conqueror 
sc-arcely less celebrated than their own, 
Robert Guiscard. Under the name of 
Varangians, those true and faithful sup- 
porters of the Byzantine empire preserv- 
ed to its dissolution their ancient Saxon 
idiom, f 

The extent of this spoliation of prop- 
erty is not to be gathered merely from 
historians, whose language might be ac- 
cused of vagueness and amplification. In 
the great national survey of Domesday 
Book, we have an indisputable record of 
this vast territorial revolution during the 
reign of the Conqueror. I am indeed sur- 
prised at Brady's position, that the Eng- 
lish had suff'ered an indiscriminate depri- 
vation of their lands. Undoubtedly there 
were a few left in almost every county, 
who still enjoyed the estates which they 
held under Edward the Confessor, free 
from any superiority but that of the 
crown, and were denominated, as in for- 

* Ingulfus, p. 61. Tantum tunc Anglicos abo- 
minati sunt, ut quantocunque merito pollerent, de 
dignitatibus repellebantur ; et multo minus habiles 
alienigenffi de quacunque alia natione, quaj sub 
coelo est, extitissent, gratanter assumerentur. Ip- 
sum etiam idioma tantum abhorrebant, quod leges 
terras, statutaque Anglicorum regum lmgu& Gal- 
lica tractarentur ; et pueris etiam in scholis prin- 
cipia literarum grammatica Gallic^, ac non Angli- 
ce traderentur; modus etiam scribendi Anglicus 
omitteretur, et modus Gallicus in chartis et in li- 
bris omnibus admitteretur. 

t Gibbon, vol. x., p. 223. No writer, except per- 
haps the Saxon Chronicler, is so full of William's 
tyranny as Ordericus Vitalis. — See particularly pp. 
507, 512, 514, 521,523, in Du Chesne, Hist. Norm. 
Script. Ordericus was an Englishman, but pass- 
ed at ten years old, A. D. 1084, into Normandy, 
where he became professed in the monastery of 
Eu, ibid., p. 924. 



mer times, the king's thanes.* Cospa- 
tric, son perhaps of one of that nam© 
who had possessed the earldom of Nor- 
thumberland, held forty-one manors in 
Yorkshire, though many of them are sta- 
ted in Domesday to be waste. Inferior 
freeholders were probably much less dis- 
turbed in their estates than the higher 
class. Though few of English birth con- 
tinued to enjoy entire manors, even by a 
mesne tenure, it is reasonable to suppose 
that the greater part of those who ap- 
pear, under various denominations, to 
have possessed small freeholds and par- 
cels of manors, were no other than the 
original natives. 

Besides the severities exercised upon 
the English after every insur- Devastation 
rection, two instances of Will- of Yorkshire 
iam's unsparing cruelty are p"rest*^"' 
well known, the devastation of 
Yorkshire and of the New Forest. In the 
former, which had the tyrant's plea, ne- 
cessity, for its pretext, an invasion being 
threatened from Denmark, the whole 
country between the Tyne and the Hum- 
ber was laid so desolate, that for nine years 
afterward there was not an inhabited vil- 
lage, and hardly an inhabitant left ; the 
wasting of this district having been follow- 
ed by a famine, which swept away the 
whole population.! That of the New For- 
est, though undoubtedly less calamitous in 
its efl!'ects, seems even more monstrous, 
from the frivolousness of the cause.J He 
aflTorested several other tracts. And these 
favourite demesnes of the Norman kings 
were protected by a system of iniquitous 
and cruel regulations, called the Forest 
Laws, which it became afterward a great 
object with the assertors of liberty to 
correct. The penalty for killing a stag 
or a boar was loss of eyes : for William 
loved the great game, says the Saxon 
Chronicle, as if he had been their father.^ 

A more general proof of the ruinous 



* Brady, whose unfairness always keeps pace 
with his ability, pretends that all these were me- 
nial officers of the king's household. But notwith- 
standing the difficulty of disproving these gratui- 
tous suppositions, it is pretty certain that many 
of the English proprietors in Domesday could not 
have been of this description. — See p. 99, 153, 218, 
219, and other places. The question, however, 
was not worth a battle, though it makes a figure in 
the controversy of Normans and Anti-Normans, 
between Dugdale and Brady on the one side, and 
Tyrrell, Petyt, and Atwood on the other. 

t Malmsbury, p. 103. Hoveden, p. 451. Orde- 
ric. Vitalis, p. 514. The desolation of Yorkshire 
continued in Malmsbury's time, sixty or seventy 
years afterward ; nudum omnium solum usque ad 
lioc etiam tempus. 

t Malmsbury, p. 111. 

i) Chron. Saxon., p. 191, 



Part II.] 



ENGLISH CONSTITUTION. 



335 



Proofs of oppression of William the Con- 
depopuia- queror may be deduced from the 

tioii from ^ , ■ •' J. . r .u 

Domesday comparative condition of the 
Book. English towns in the reign of 
Edward the Confessor, and at the compi- 
lation of Domesday. At the former 
epoch there were in York 1607 inhabited 
houses, at the latter 967 ; at the former 
there were in Oxford 721, at the latter 
843 ; of 172 houses in Dorchester, 100 
were destroyed ; of 243 in Derby, 103 ; 
of 487 in Chester, 205. Some other 
towns had suffered less, but scarcely any 
one fails to exhibit marks of a decayed 
population. As to the relative numbers 
of the peasantry and value of lands at 
these two periods, it would not be easy 
to assert any thing without a laborious 
examination of Domesday Book. 

The demesne lands of the crown, ex- 
Domains of tensive and scattered over every 
the crown, couiity, were abundantly suffi- 
cient to support its dignity and magnifi- 
cence ;* and William, far from wasting 
this revenue by prodigal grants, took 
care to let them at the highest rate to 
farm, little caring how much the cultiva- 
tors were racked by his tenants. f Yet 
his exactions, both feudal and in the way 
of tallage from his burgesses and the ten- 
ants of his vassals, were almost as vio- 
lent as his confiscations. No source of 
income was neglected by him, or indeed 
by his successors, however trifling, un- 
just, or unreasonable. His revenues, if 
Riches of '^'^ could trust Ordericus Vitalis, 
the Con- amounted to jG1060 a day. This, 
queror. jj^ mere weight of silver, would 
be equal to nearly £1,200,000 a year at 
present. But the arithmetical statements 
of these writers are not implicitly to be 
relied upon. He left at his death a treas- 
ure of £60,000, which, in conformity to 
his dying request, his successor distrib- 
•ated among the church and poor of the 
kingdom, as a feeble expiation of the 
crimes by which it had been accumula- 
ted ;% an act of aisinterestedness, which 
seems to prove that Rufus, amid all his 
vices, was not destitute of better feelings 
than historians have ascribed to him. It 
might appear that William had little use 
for his extorted wealth. By the feudal 
constitution, as established during his 
reign, he commanded the service of a 
vast army at its own expense, either for 

* They consisted of 1422 manors. — Lyttleton's 
Henry II., vol. ii., p. 28S. 

t Chron. Saxon., p. 188. 

i Huntingdon, p. 371. Ordericus Vitalis puts a 
long penitential speech jnto William's mouth on 
his death-bed, p. G66. Though this may be his in- 
vention, yet facts seem to show the compunctions 
of the tyrant's conscience. 



domestic or continental warfare. But 
this was not sufficient for his uis merce- 
purpose : like other tyrants, he nary troopa. 
put greater trust in mercenary obedience. 
Some of his predecessors had kept bodies 
of Danish troops in pay ; partly to be se- 
cure against their hostility, partly from 
the convenience of a regular army, and 
t'he love which princes bear to it. But 
William carried this to a much greater 
length. He had always stipendiary sol- 
diers at his command. Indeed, his army 
at the conquest could not have been 
swelled to such numbers by any other 
means. They were drawn, by the allure- 
ment of high pay, not from France and 
Britany alone, but Flanders, Germany, 
and even Spain. When Canute of Den- 
mark threatened an invasion in 1085, 
William, too conscious of his own tyran- 
ny to use the arms of his English sub- 
jects, collected a mercenary force so 
vast, that men wondered, says the Saxon 
Chronicler, how the country could main- 
tain it. This he quartered upon the peo- 
ple, according to the proportion of their 
estates.* 

Whatever may be thought of the Anglo- 
Saxon tenures, it is certain that peudaisys- 
those of the feudal system were tem estaB- 
thoroughly established in Eng- ''^'^^'^ 
land under the Conqueror. It has been 
observed in another part of this work, 
that the rights, or feudal incidents of 
wardship and marriage, were nearly pe- 
culiar to England and Normandy. They 
certainly did not exist in the former be- 
fore the conquest ; but whether they were 
ancient customs of the latter cannot be 
ascertained, unless we had more incon- 
testable records of its early jurisprudence. 
For the Great Customary of Normandy 
is a compilation as late as the reign of 
Richard Coeur de Lion, when the laws of 
England might have passed into a country 
so long and intimately connected with it 
But there appears reason to think that 
the seizure of the lands in wardship, the 
selling of the heiress in marriage, were 
originally deemed rather acts of violence 
than conformable to law. For Henry 
I.'s charter expressly promises that the 
mother, or next of kin, shall have the 
custody of the lands as well as person of 
the heir.f And as the charter of Henry 
II. refers to and confirms that of his 
grandfather, it seems to follow that what 

* Chron. Saxon., p. 185. Ingulfus, p. 79. 

t Terrae et liberorum custos erit sive uxor, sive 
alius propinquorum, qui Justus esse debebit ; et prae 
cipio ut barones mei similiter se contineant ergu 
filios vel fihas vel uxores hominum meorum. — Le 
ges Anglo-Saxonicw, p. 234. 



330 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII 



is called guardianship in chivalry had not 
yet been established. At least it is not 
till the assize of Clarendon, confirmed at 
Northampton in 1176,* that the custody 
of the heir is clearly reserved to the lord. 
With respect to the right of consenting 
to the marriage of a female vassal, it 
seems to have been, as I have elsewhere 
observed, pretty general in feudal tenures. 
But the sale of her person in marriage, 
or the exaction of a sum of money in 
lieu of this scandalous tyranny, was only 
the law of England, and was not pernaps 
fully authorized as such till the statute of 
Merton in 1236. 

One innovation made by William upon 
the feudal law is very deserving of atten- 
tion. By the leading principle of feuds, 
an oath of fealty was due from the vas- 
sal to the lord of whom he immediately 
held his land, and to no other. The King 
of France, long after this period, had no 
feudal and scarcely any royal authority 
over the tenants of his own vassals. But 
William received at Salisbury, in 1085, 
the fealty of all landholders in England, 
both those who held in chief and their 
tenants ;t thus breaking in upon the feudal 
compact in its most essential attribute, 
the exclusive dependance of a vassal 
upon his lord. And this may be reckon- 
ed among the several causes which pre- 
vented the continental notions of inde- 
pendence upon the crown from ever 
taking root among the English aristoc- 
racy. 

The best measure of William was the 
Preservation of establishment of pubhc peace, 
public peace, jje permitted no rapine but 
his own. The feuds of private revenge, 
the lawlessness of robbery, were re- 
pressed. A girl loaded with gold, if we 
believe some ancient writers, might have 
passed safely through the kingdom. | But 
this was the tranquillity of an imperious 
and vigilant despotism, the degree of 
which may be measured by these effects, 
in which no improvement of civilization 
had any share. There is assuredly noth- 
ing to wonder at in the detestation with 
wtTich the English long regarded the 
memoryof this tyrant.^ Some advantages 



♦ Leges Anglo-SaxonicK, p. 330. 

t Chron. Saxon., p. 187. 

i Chron. Saxon., p. 190. M. Paris, p. 10. I will 
not omit one other circiiinstnnr-e, apparently praise- 
worthy, which Ordencus mciiiions of William, that 
he tried to learn English, in order to render justice 
by understanding every man's complaint, but failed 
on account of his advanced age, p. 520. This was 
in the early part of his reign, before the reluctance 
of the English to submit had exasperated his dis- 
position. 

<i W Malmsb., Praef., ad. 1. iii. 



undoubtedly, in the course of human af- 
fairs, eventually sprang from the Norman 
conquest. The invaders, though without 
perhaps any intrinsic superiority in social 
virtues over the native Enghsh, degraded 
and barbarous as these are represented 
to us, had at least that exterior polish of 
courteous and chivalric manners, and that 
taste for refinement and magnificence, 
which serve to elevate a people from 
mere savage rudeness. Their buildings, 
sacred as well as domestic, became more 
substantial and elegant. The learning of 
the clergy, the only class to whom that 
word could at all be applicable, became 
infinitely more respectable in a short time 
after the conquest. And though this may 
by some be ascribed to the general im- 
provements of Europe in that point during 
the twelfth century, yet I think it was 
partly owing to the more free intercourse 
with France and the closer dependance 
upon Rome which that revolution pro- 
duced. This circumstance was, how- 
ever, of no great moment to the English 
of those times, whose happiness could 
hardly be affected by the theological rep- 
utation of Lanfranc and Anselm. Per- 
haps the chief benefit which the natives 
of that generation derived from the gov- 
ernment of William and his successors, 
next to that of a more vigilant police, was 
the security they found from invasion on 
the side of Denmark and Norway. The 
high reputation of the conqueror and his 
sons, with the regular organization of a 
feudal militia, deterred those predatory 
armies which had brought such repeated 
calamity on England in former times. 

The system of feudal policy, though de- 
rived to England from a French Difference 
source, bore a very different ap- between the 

. ^, ^•' . ^ feudal policy 

pearance m the two countries. i„ Kngiand 

France, for about two Centu- and France. 

ries after the house of Capet had usurped 
the throne of Charlemagne's posterity, 
could hardly be deemed a regular con 
federacy, much less an entire monarchy. 
But in England, a government, feudal in- 
deed in its form, but arbitrary in its exer- 
cise, not only maintained subordination, 
but almost extinguished liberty. Several 
causes seem to have conspired towards 
this radical difference. In the first place, 
a kingdom, comparatively small, is much 
more easily kept under control than one 
of vast extent. And the fiefs of Anglo- 
Norman barons after the con()uest were 
far less considerable, even relatively to 
the size of the two countries, than those 
of France. The Earl of Chester held, 
indeed, almost all that county;* the 

* This was, upon the whole, more like a great 



Part IL] 



ENGLISH CONSTITUTION. 



337 



Earl of Shrewsbury nearly the whole of 
Salop. But these domains bore no com- 
parison with the dukedom of Guienne or 
the county of Touloues. In general, the 
lordships of William's barons, whether 
this were owing to policy or accident, 
were exceedingly dispersed. Robert, 
earl of Moreton, for example, the most 
richly-endowed of his followers, enjoyed 
248 manors in Cornwall, 54 in Sussex, 
196 in Yorkshire, 99 in Northampton- 
shire, besides many in other counties.* 
Estates so disjoined, however immense 
in their aggregate, were ill calculated for 
supporting a rebellion. It is observed by 
Madox, that the knight's fees of almost 
every barony were scattered over vari- 
ous counties. 

In the next place, these baronial fiefs 
were held under an actual derivation from 
the crown. The great vassals of France 
had usurped their dominions before the 
accession of Hugh Capet, and barely sub- 
mitted to his nominal sovereignty. They 
never intended to yield the feudal tributes 
of relief and aid, nor did some of them 
even acknowledge the supremacy of his 
royal jurisdiction. But the conqueror 
and his successors imposed what condi- 
tions they would upon a set of barons who 
owed all to their grants ; and as man- 
kind's notions of right are generally 
founded upon prescription, these peers 
grew accustomed to endure many bur- 
dens, reluctantly indeed, but without that 
feeling of injury which would have re- 
sisted an attempt to impose them upon 
the vassals of the French crown. For 
the same reasons, the barons of England 
were regularly summoned to the great 
council, and by their attendance in it, and 
concurrence in the measures which were 
there resolved upon, a compactness and 
unity of interest was given to the monar- 
chy which was entirely wanting in that 
of France. But above all, the paramount 
authority of the king's court, and those 
excellent Saxon tribunals of the county 
and hundred, kept within very narrow 
limits that great support of the feudal 



French fief than any English earldom. Hugh de 
Abrincis, nephew of William I., had barons of his 
own, one of whom held lorty-six and another thirty 
manors. Chester was first called a county-palatine 
under Henry II.; but it previously possessed all 
regalian rights of jurisdiction. After the forfeit- 
ures of the house of Montgomery, it acquired all 
the country between the Mersey and Ribble. Sev- 
eral emment men inherited the earldom ; but upon 
the death of the most distinguished, Ranulf, in 
1232, it fell into a female line, and soon escheated 
to the crown.— Dugdale's Baronage, p. 45. Lyttle- 
ton'e Henry 11., vol. li., p. 218. 
• Dugdale's Baronage, p. 25. 



aristocracy, the right of territorial juris- 
diction. Except in the counties palatine, 
the feudal courts possessed a very tri- 
fling degree of jurisdiction over civil, and 
not a very extensive one over criminal 
causes. 

We may add to the circumstances that 
rendered the crown powerful du- Hatred of 
ring the first century after the Engiisiuo 
conquest, an extreme antipathy Normans, 
of the native English towards their in- 
vaders. Both William Rufus and Henry 
I. made use of the former to strengthen 
themselves against the attempts of their 
brother Robert ; though they forgot their 
promises to the English after attaining 
their object.* A fact, mentioned by Or- 
dericus Vitalis, illustrates the advantage 
which the government found in this na- 
tional animosity. During the siege of 
Bridgenorth, a town belonging to Robert 
de Belesme, one of the most turbulent 
and powerful of the Norman barons, by 
Henry I., in 1102, the rest of the nobility 
deliberated together, and came to the 
conclusion, that if the king could expel 
so distinguished a subject, he would be 
able to treat them all as his servants. 
They endeavoured, therefore, to bring 
about a treaty ; but the English part of 
Henry's army, hating Robert de Belesme 
as a Norman, urged the king to proceed 
with the siego ; which he did, and took 
the castle. t 

Unrestrained, therefore, comparative- 
ly speaking, by the aristocrat- Tyranny of 
ic principles which influenced the Norman 
other feudal countries, the ad- government, 
ministration acquired a tone of rigour 
and arbitrariness under William the Con- 
queror, which, though sometimes per- 
haps a little mitigated, did not cease du- 
ring a century and a half. For the first 
three reigns we must have recourse 
to historians ; whose language, though 
vague, and perhaps exaggerated, is too 
uniform and impressive to leave a doubt 
of the tyrannical character of the govern- 
ment. The intolerable exactions of trib- 
ute, the rapine of purveyance, the iniqui- 
ty of royal courts, are continually in their 
mouths. " God sees the wretched peo- 
ple," says the Saxon Chronicler, " most 
unjustly oppressed; first they are de- 
spoiled of their possessions, then butch- 
ered. This was a grievous year (1124). 
Whoever had any property, lost it by 
heavy taxes and unjust decrees. "| The 



« W. Malmsbury, p. 120 et 156. R. Hoveden, 
p. 461. Chron. Saxon., p. 194. 

t Du Chesne, Script. Norman., p. 807. 

i Chron. Saxon., p. 228. Non facile potest nar 
rari miseria, says Roger de Hoveden, quam susti 



338 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII, 



same ancient chronicle, which appears 
to have been continued from time to time 
in the abbey of Peterborough, frequently 
utters similar notes of lamentation. 

From the reign of Stephen, the miser- 
its exac- ies of which are not to my im- 
tions. rnediate purpose, so far as they 
proceeded from anarchy and intestine 
war,* we are able to trace the character 
of government by existing records. | 
These, digested by the industrious Ma- 
dox into his History of the Exchequer, 
give us far more insight into the spirit of 
the constitution, if we may use such a 
word, than all our monkish chronicles. 
It was not a sanguinary despotism. 
Henry H. was a prince of remarkable 
clemency ; and none of the Conqueror's 
successors were as grossly tyrannical as 
himself. But the system of rapacious 
extortion from their subjects prevailed to 
a degree which we should rather expect 
to find among eastern slaves, than that 
high-spirited race of Normandy, whose 
renown then filled Europe and Asia. The 
right of wardship was abused by selling 
the heir and his land to the highest bid- 
der. That of marriage was carried to a 
still grosser excess. The kings of France 
jndeed claimed the prerogative of forbid- 
ding the marriage of their vassals' daugh- 
ters to such persons as they thought 
unfriendly or dangerous to themselves ; 
but I am not aware that they ever com- 
pelled them to marry, much less that they 
turned this attribute of sovereignty into 
a means of revenue. But in England, 
Avomen, and even men, simply as ten- 
ants in chief, and not as wards, fined to 
the crown for leave to marry whom they 
would, or not to be compelled to marry 
any other.J Towns not only fined for 
original grants of franchises, but for re- 



nuit illo tempore [circ. arm. 1103], terra Anglorum 
propter regias exactiones, p. 470. 

* The following simple picture of that reign from 
the Saxon Chronicle may be worth mserting. 
" The nobles and bishops built castles, and filled 
them with devilish and wicked men, and oppressed 
the people, cruelly torturing men for their money. 
They imposed taxes upon towns, and when they 
had exhausted them of every thing, set them on 
fire. You might travel a day, and not find one 
man living in a town, nor any land in cultivation. 
Never did the country suffer greater evils. If two 
or three men were seen riding up to a town, all its 
inhabitants left it, taking them for plunderers. And 
this lasted, growing worse and worse, throughout 
Stephen's reign. Men said openly that Christ and 
his saints were asleep," p. 239. 

t The earliest record in the Pipe-office is that 
which Madox, in conformity to the usage of others, 
cites by the name of Magnum Rotulum quinto 
Stephani. But in a particular dissertation subjoin- 
ed to his History of the Exchequer, he inclines, 
though not decisively, to refer this record to the 
reign of Henry I. t Madox, c. 10. 



peated confirmations. The Jews paid 
exorbitant sums for every common right 
of mankind, for protection, for justice. 
In return, they were sustained against 
their Christian debtors in demands of 
usury, which superstition and tyranny 
rendered enormous.* Men fined for the 
king's good-will ; or that he would remit 
his anger ; or to have his mediation with 
their adversaries. Many fines seem as 
it were imposed in sport, if we look to 
the cause ; though their extent, and the 
solemnity with which they were record- 
ed, prove the humour to have been dif- 
ferently relished by the two parties. 
Thus the Bishop of Winchester paid a 
tun of good wine for not reminding the 
king (John) to give a girdle to the Count- 
ess of Albemarle ; and Robert de Vaux 
five best palfreys, that the same king 
might hold his peace about Henry Pinel's 
wife. Another paid four marks for leave 
to eat (pro licentia comedendi). But of 
all the abuses which deformed the Anglo- 
Norman government, none was so flagi- 
tious as the sale of judicial redress. The 
king, we are often told, is the fountain of 
justice ; but in those ages, it was one 
which gold alone could unseal. Men 
fined to have right done them ; to sue 
in a certain court ; to emplead a certain 
person ; to have restitution of land which 
they had recovered at law.f From the 
sale of that justice which every citizen 
has a right to demand, it was an easy 
transition to withhold or deny it. Fines 
were received for the king's help against 
the adverse suiter ; that is, for perversion 
of justice, or for delay. Sometimes they 
were paid by opposite parties, and, of 
course, for opposite ends. These were 
called counter-fines ; but the money v/as 
sometimes, or, as Lord Lyttleton thinks, 
invariably, returned to the unsuccessful 
suiter.J 

Among a people imperfectly civilized, 
the rnost outrageous injustice to- General 
wards individuals may pass with- "'"'^^ 
out the slightest notice, while in matters 
affecting the community, the powers of 
government are exceedingly controlled. 
It becomes therefore an important ques- 
tion, Avhat prerogative these Norman 
kings were used to exercise in raising 
money, and in general legislation. By 
the prevailing feudal customs, the lord 
was entitled to demand a pecuniary aid 
of his vassals in certain cases. These 



* Madox, c. 7. t M., c. 12 and 13. 

X The most opposite instances of these exactions 
are well selected from Mado.i by Hume, Appendix 
II. : upon which account I have gone less into de 
tail than would otherwise have been necessary. 



Part It.] 



ENGLISH CONSTITUTION. 



339 



were, in England, to make his eldest son 
a knight, to marry his eldest daughter, 
and to ransom himself from captivity. 
Accordingly, when such circumstances 
occurred, aids were levied by the crown 
upon its tenants, at the rate of a mark 
or a pound for every knight's fee.* 
These aids, being strictly due in the pre- 
scribed cases, were taken without requi- 
ring the consent of parliament. Escu- 
age, which was a commutation for the 
personal service of military tenants in 
war, having rather the appearance of an 
indulgence than an imposition, might 
reasonably be levied by the king.f It 
was not till the charter of John that es- 
cuage became a parliamentary assess- 
ment ; the custom of commuting service 
having then grown general, and the rate 
of commutation being variable. 

None but military tenants could be lia- 
ble for escuage ;| but the inferior sub- 
jects of the crown were oppressed by 
tallages. The demesne lands of the 
king and all royal towns were liable to 
tallage ; an imposition far more rigorous 
and irregular than those which fell upon 
the gentry. Tallages were continually 
raised upon different towns during all the 
Norman reigns, without the consent of 
parliament, which neither represented 
them nor cared for their interests. The 
itinerant justices in their circuit usually 
set this tax. Sometimes the tallage was 
assessed in gross upon a town, and col- 
lected by the burgesses : sometimes indi- 
vidually, at the judgment of the justices. 
There was an appeal from an excessive 
assessment to the barons of the ex- 
chequer. Inferior lords might tallage 
their own tenants and demesne towns, 
though not, it seems, without the king's 
permission.'^ Customs upon the import 

* The reasonable aid was fixed by the statute of 
Westminster I., 3 Edw. I., c. 36, at twenty shillings 
for every knight's fee, and as much for every 20/. 
value of land held by soccage. The aid pour faire 
fitz chevalier might be raised, when he entered 
into his fifteenth year ; pour fiUe marier, when she 
reached the age of seven. 

t Fit interdum, ut imminente vel insiirgente in 
regnum hostium machinatione, decernat rex de 
singulis feodis militum summam aliquam solvi, 
marcam scilicet, vel libram unam; unde militibus 
stipendia vel donativa succedant. Mavult enim 
princeps stipendiaries quam domesticos bellicis 
exponere casibus. Haec itaque summa, quia 
nomine scutorum solvitur, scutagium nominatur. 
— Dialogus de Scaccario, ad finem. Madox, Hist. 
Exchequer, p. 25 (edit, in folio). 

X The tenant in capite was entitled to be reim- 
bursed what would have been his escuage by his 
vassals even if he performed personal service. — 
Madox, c. 10. 

() For the important subject of tallages, see Ma- 
dox, 0. 17. 

Y2 



and export of merchandise, of which 
the prisage of wine, that is, a right of 
taking two casks out of each vessel, 
seems the most material, were immemo- 
rially exacted by the crown. There is 
no appearance that these originated with 
parliament.* Another tax, extending to 
all the lands of the kingdom, was Dane- 
geld, the ship-money of those times. 
This name had been originally given to 
the tax imposed under Ethelred II., in 
order to raise a tribute exacted by the 
Danes. It was afterward applied to a 
permanent contribution for the public 
defence against the same enemies. But 
after the conquest this tax is said to have 
been only occasionally required ; and the 
latest instance on record of its payment 
is in the 20th of Henry II. Its imposi- 
tion appears to have been at the king's 
discretion.! 

The right of general legislation was 
undoubtedly placed in the king. Right of le- 
conjointly with his great conn- g'siation. 
cil,J or, if the expression be thought more 
proper, with their advice. So little op- 
position was found in these assemblies 
by the early Norman kings, that they 
gratified their own love of pomp, as well 
as the pride of their barons, by consult- 
ing them in every important business. 
But the limits of legislative power were 
extremely indefinite. New laws, like 
new taxes, affecting the community, re- 
quired the sanction of that assembly 
which was supposed to represent it ; but 
there was no security for individuals 
against acts of prerogative, which we 
should justly consider as most tyranni- 
cal. Henry 11. , the best of these mon- 
archs, banished from England the rela- 
tions and friends of Becket, to the num- 
ber of four hundred. At another time, 
he sent over from Normandy an injunc- 
tion, that all the kindred of those who 
obeyed a papal interdict should be ban- 
ished, and their estates confiscated.^ 

* Madox, c. 18. Hale's Treatise on the Cus- 
toms in Margrave's Tracts, vol. i., p. 116. 

t Henr. Huntingdon, 1. v., p. 205. Dialogus de 
Scaccario, c. 11. Madox, c. 17. Lyttleton's 
Henry 11., vol. ii., p. 170. 

X Glanvil, Prologus ad Tractatum de Consuetud 

(j Hoveden, p. 496. Lyttleton, vol. ii., p. 530. 
The latter says that this edict must have been 
framed by the king with the advice and assent of 
his council. But if he means his great council, I 
cannot suppose that all the barons and tenants 
in capite could have been duly summoned to a 
council held beyond seas. Some English barons 
might doubtless have been with the king, as at 
Verneuil in 1176, where a mixed assembly of Eng- 
lish and French enacted laws for both countries. 
Benedict. Abbas apud Hume. So at Northampton 
in 1165, several Norman barons voted ; nor is any 



340 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



The statutes of those reigns do not ex- 
Laws and char- hibit to US many provisions 
ters of Norniaii calculated to maintain public 
kings. liberty on a broad and gen- 

eral foundation. And although the laws 
then enacted have not all been preserved, 
yet it is unlikely that any of an exten- 
sively remedial nature should have left 
no trace of their existence. We find, 
however, what has sometimes been call- 
ed the Magna Charta of William the 
Conqueror, preserved in Roger de Hove- 
den's collection of his laws. We will, 
enjoin, and grant, says the king, that all 
freemen of our kingdom shall enjoy their 
lands in peace, free from all tallage, and 
from every unjust exaction, so that noth- 
ing but their service lawfully due to us 
shall be demanded at their hands.* The 
laws of the Conqueror, found in Hove- 
den, are wholly different from those in 
Ingulfus, and are suspected not to have 
escaped considerable interpolation.f It 
is remarkable that no reference is made 
to this concession of William the Con- 
queror in any subsequent charter. How- 
ever, it seems to comprehend only the 
feudal tenants of the crown. Nor does 
the charter of Henry I., though so much 
celebrated, contain any thing specially 
expressed but a remission of unreasona- 
ble reliefs, wardships, and other feudal 
burdens.! It proceeds, however, to de- 
clare that he gives his subjects the laws 
of Edward the Confessor, with the 
emendations made by his father with 
consent of his barons.^ The charter 
of Stephen not only confirms that of his 
predecessor, but adds, in fuller terms 
than Henry had used, an express conces- 
sion of the laws and customs of Ed- 



notice taken of this as irregular. — Fitz Stephen, 
ibid. So unfixed, or rather unformed, were all 
constitutional principles. 

* Volumus etiam, ac firmiter prjecipimus et 
concedimus, ut oinnes liberi homines totius mon- 
archic praedicti regni nostri habeant et teneant ter- 
ras suas et possessiones suas benS, et in pace, li- 
bere ab omni exactione injusta, et abomnitallagio, 
ita quod nihil ab lis exigatur vel capiatur, nisi ser- 
vitium suum liberum, quod de jure nobis facere 
debent, et facere tenenlur ; et prout statutum est 
iis, et lUis a nobis datum et concessum jure hsered- 
itario in perpetuum per commune concdium totius 
regni nostri prsedicti. 

t Selden, ad Eadmerum. Hody (Treatise on 
Convocations, p. 249), infers from the words of 
Hoveden, that they were altered from the French 
original by Glanvil. 

t Wilkins, p. 234. 

l) A great impression is said to have been made 
on the barons confederated against John by the 
production of Henry I. 's charter, whereof they had 
been ignorant. — Matt. Paris., p. 212. But this 
could hardly have been the existing charter, for 
reasons alleged by Blackstone. — Introduction to 
Magna Charta, p. 6. 



ward.* Henry H. is silent about these, 
although he repeats the confirmation of 
his grandfather's charter. f The people, 
however, had begun to look back to a 
more ancient standard of law. The 
Norman conquest, and all that ensued 
upon it, had endeared the memory of 
their Saxon government. Its disorders 
were forgotten, or rather were less odi- 
ous to a rude nation, than the coercive 
justice by which they were afterward 
restrained. J Hence it became the fa- 
vourite cry to demand the laws of Ed- 
ward the Confessor; and the Normans 
themselves, as they grew dissatisfied 
with the royal administration, fell into 
these English sentiments.^ But what 
these laws were, or more properly, per- 
haps, these customs, subsisting in the 
Confessor's age, was not very distinctly 
understood.il So far, however, was clear, 
that the rigorous feudal servitudes, the 
weighty tributes upon poorer freemen, 
had never prevailed before the conquest. 
In claiming the laws of Edward the Con- 
fessor, our ancestors meant but the re 
dress of grievances which tradition told 
them had not always existed. 

It is highly probable, independently of 
the evidence supphed by the Ri^hardi's 
charters of Henry I. and his chancellor 
two successors, that a sense of deposed by 
oppression had long been stim- '^* Karons 

* Wilkins, Leges Anglo-Saxon., p. 310. 

■t Id., p. 318. 

J The Saxon Chronicler complains of a witten- 
agemot, as he calls it, or assizes, held at Leices- 
ter in 1124, where forty-four thieves were hanged, 
a greater number than was ever before known ; it 
was said that many suffered unjustly, p. 228. 

^ The distinction between the two nations was 
pretty well obliterated at the end of Henry II. 's 
reign, as we learn from the Dialogue on the E.x- 
chequer, then written ; jam cohabitantibus Angli- 
cis et Normannis, et alterutrum uxores ducenti- 
bus vel nubentibus, sic permixtae sunt nationes, ut 
vix discern! possit hodie, de liberis loquor, quis 
Anglicus, quis Normannus sit genere ; exceptis 
duntaxat ascriptitiis qui villani dicuntur, quibus" 
non est liberum obstanlibus dominis suis a sui sta- 
tus conditione discedere. Eapropter pene qui- 
cunque sic hodie occisus reperilur, ut murdrum 
punitur, exceptis his quibus certa sunt ut dixiinus 
servilis conditionis indicia, p. 26. 

II Non quas tulit, sed quas observaverit, says 
William of Malmsbury, concerning the Confes- 
sor's laws. Those bearing his name in Lambard 
and Wilkins are evidently spurious, though it may 
not be easy to fix upon the time when they were 
forged. Those found in Ingulfus, in the French 
language, are genuine, and were confirmed by 
William the Conqueror. Neither of these collec- 
tions, however, can be thought to have any rela- 
tion to the civil liberty of the subject. It has been 
deemed more rational to suppose, that these long- 
ings for Edward's laws were rather meant for a 
mild administration of government, free from un- 
just Norman innovations, than any written and 
definitive system. 



Part II.] 



ENGLISH CONSTITUTION. 



341 



ulating the subjects of so arbitrary a gov- 
ernment, before they gave any demon- 
strations of it sufficiently palpable to find 
a place in history. But there are cer- 
tainly no instances of rebellion, or even, 
as far as we know, of a constitutional 
resistance in parliament, down to the 
reign of Richard I. The revolt of the 
earls of Leicester and Norfolk against 
Henry II., which endangered his throne 
and comprehended his children with a 
large part of his barons, appears not to 
have been founded even upon the pretext 
of pubhc grievances. Under Richard I., 
something more of a national spirit be- 
gan to show itself. For the king having 
left his chancellor, William Longchamp, 
joint regent and justiciary with the Bish- 
op of Durham during his crusade, the 
foolish insolence of the former, who ex- 
cluded his coadjutor from any share in 
the administration, provoked every one 
of the nobility. A convention of these, 
the king's brother placing himself at their 
head, passed a sentence of removal and 
banishment upon the chancellor. Though 
there might be reason to conceive that 
this would not be unpleasing to the king, 
who was already apprized how much 
Longchamp had abused his trust, it was 
X a remarkable assumption of power by 
f that assembly, and the earliest authority 
for a leading principle of our constitu- 
tion, the responsibility of ministers to 
parliament. 

In the succeeding reign of John, all the 
Magna rapacious exactions usual to these 
Ghana. Norman kings were not only re- 
doubled, but mingled with other outrages 
of tyranny still more intolerable.* These 
too were to be endured at the hands of a 
prince utterly contemptible for his folly 
and cowardice. One is surprised at the 
forbearance displayed by the barons, till 
they took arms at length in that confed- 
eracy which ended in establishing the 
Great Charter of Liberties. As this was 
V the first effort towards a legal govern- 
ment, so is it beyond comparison the 
most important event in our history, ex- 
cept that revolution without which its 
benefits would rapidly have been annihi- 
lated. The constitution of England has 
indeed no single date from which its du- 
ration is to be reckoned. The institu- 
tions of positive law, the far more impor- 
tant changes which time has wrought in 



* In 1207, John took a seventh of the moveables 
of lay and spiritual persons, cunctis murmurantibus, 
sed contradicere non audentibus. — Matt. Paris, p. 
186, ed. 1684. But his insults upon the nobility in 
debauching their wives and daughters were, as usu- 
ally happens, the most exasperatmg provocation. 



the order of society during six hundred 
years subsequent to the Great Charter, 
have undoubtedly lessened its direct ap- 
plication to our present circumstances. 
But it is still the keystone of English 
liberty. All that has since been obtained 
is little more than as confirmation or 
commentary ; and if every subsequent 
law were to be swept away, there would 
still remain the bold features that distin- 
guish a free from a despotic monarchy. 
It has been lately the fashion to depreci- 
ate the value of Magna Charta, as if it 
had sprung from the private ambition of 
a few selfish barons, and redressed only 
some feudal abuses. It is indeed of little 
importance by what motives those who 
obtained it were guided. The real char- 
acters of men most distinguished in the 
transactions of that time are not easily 
determined at present. Yet if we bring 
these ungrateful suspicions to the test, 
they prove destitute of all reasonable 
foundation. An equal distribution of 
civil rights to all classes of freemen 
forms the peculiar beauty of the charter. 
In this just solicitude for the people, and 
in the moderation which infringed upon 
no essential prerogative of the monarchy, 
we may perceive a liberality and patri- 
otism very unlike the selfishness which 
is sometimes rashly imputed to those 
ancient barons. And, as far as we are 
guided by historical testimony, two great 
men, the pillars of our church and state, 
may be considered as entitled beyond the 
rest to the glory of this monument ; Ste- 
phen Langton, archbishop of Canterbury, 
and William, earl of Pembroke. To 
their temperate zeal for a legal govern- 
ment, England was indebted during that 
critical period for the two greatest bles- 
sings that patriotic statesmen could con- 
fer; the establishment of civil hberty 
upon an immoveable basis, and the pres- 
ervation of national independence under 
the ancient line of sovereigns, which 
rasher men were about to exchange for 
the dominion of France. 

By the Magna Charta of John, reliefs 
were limited to a certain sum, according 
to the rank of the tenant, the waste com- 
mitted by guardians in chivalry restrain- 
ed, the disparagement in matrimony of 
female wards forbidden, and widows se- 
cured from compulsory marriage. These 
regulations, extending to the sub-vassals 
of the crown, redressed the worst griev- 
ances of every military tenant in Eng- 
land. The franchises of the city of Lon- 
don and of all towns and boroughs were 
declared inviolable. The freedom of 
commerce was guarantied to alien mer- 



343 



EUROPE DLRING THE MIDDLE AGES. 



[Chap. VIII. 



chants. The Court of Common Pleas, 
mstead of following the king's person, 
was fixed at W'estnnnster. The tyranny 
exercised in the neighbourhood of royal 
forests met with some check, which was 
further enforced by the Charter of For- 
ests under Henry HI. 

But the essential clauses of Magna 
Charta are those which protect the per- 
sonal liberty and property of all freemen, 
by giving security from arbitrary impris- 
onment and arbitrary spohation. "No 
freeman (says the 29th chapter of Henry 
HI.'s charter, which, as the existing law, 
1 quote in preference to that of John, the 
variations not being very material) shall 
be taken or imprisoned, or be disseized of 
his freehold, or liberties, or free customs, 
or be outlawed, or exiled, or any other- 
wise destroyed ; nor will we pass upon 
him, nor send upon him, but by lawful 
judgment of his peers, or by the law of the 
land.* We will sell to no man, we will 
not deny, or delay to any man justice or 
right." It is obvious that these words, in- 
terpreted by any honest court of law, con- 
vey an ample security for the two main 
rights of civil society. From the era, 
therefore, of King John's charter, it must 
have been a clear principle of our consti- 
tution, that no man can be detained in 
prison without trial. Whether courts of 
justice framed the writ of habeas corpus 
m conformity to the spirit of this clause, 
or found it already in their register, it be- 
came from that era the right of every sub- 
ject to demand it. That writ, rendered 
more actively remedial by the statute of 
Charles II., but founded upon the broad 
basis of Magna Charta, is the principal bul- 
wark of English liberty ; and if ever tem- 
porary circumstances, or the doubtful plea 
of political necessity, shall lead men to 
look on its denial with apathy, the most 

* Nisi per legale judicium parium suorum, vel 
per legem terra;. Several explanations have been 
oifered of the alternative clause, which some 
have referreil to judgment by dei'ault or demurrer, 
others to the process of attachment for contempt. 
Certainly there are many legal procedures besides 
trial by jury, through winch a party's goods or per- 
son may be taken. But one may doubt whether 
these were in contemplation of the framers of 
Magna Charta. In an entry of the charter of 1217 
by a contemporary hand, preserved in a book in the 
town-clerk's oilice in Limilon, called Liber Cus- 
tumarum et Regum antiquorum, a various reading, 
et per legem terrae, occurs.— Blackstone's Char- 
ters, p. 12. And the word vel is so frequently used 
for et, that I am not wholly free from a suspicion 
that it was so intended in this ulace. The mean- 
mg will be, that no person shall be disseized, &c. 
except upon a lawful cause of action or endictment, 
found by the verdict of a jury. This really seems 
as good as any of the disjunctive interpretations ; 
but I do not offer it with much confidence. 



distinguishing characteristic of our con- 
stitution will be effaced. 

As the clause recited above protects 
the subject from any absolute spoliation 
of his freehold rights, so others restrain 
the excessive amercements which had an 
almost equally ruinous operation. The 
magnitude of his offence, by the 141h 
clause of Henry lll.'s charter, must be 
the measure of his fine ; and in every 
case the contenement (a word expressive 
of chattels necessary to each man's sta- 
tion, as the arms of a gentleman, the 
merchandise of a trader, the plough and 
wagons of a peasant) was exempted from 
seizure. A provision was made in the 
charter of John, that no aid or escuage 
should be imposed, except in the three 
feudal cases of aid, without consent of 
parliament. And this was extended to 
aids paid by the city of London. But 
the clause was omitted in the three char- 
ters granted by Henry HI., though par- 
liament seem to have acted upon it in 
most part of his reign. It had, however, 
no reference to tallages imposed upon 
towns without their consent. Fourscore 
years were yet to elapse before the great 
principle of parliamentary taxation was 
explicitly and absolutely recognised. 

A law which enacts that justice shall 
neither be sold, denied, nor delayed, 
stamps with infamy that government un- 
der which it had become necessary. But 
from the time of the charter, according 
to Madox, the disgraceful perversions of 
right, which are upon record in the rolls 
of the exchequer, became less frequent.* 

P"'rom this era a new soul was infused 
into the people of England. .ei,a,epft[,e 
Her liberties, at the best long consum- 
in abeyance, became a tangible ''"n ""Jer 
possession, and those indefinite ^^'^"''y ^'^• 
aspirations for the laws of Edward the 
Confessor were changed into a steady 
regard for the Great Charter. Pass but 
from the history of Roger de Hoveden to 
that of Matthew Paris, from the second 
Henry to the third, and judge whether 
the victorious struggle had not excited 
an energy of public spirit to which the 
nation was before a stranger. The 
strong man, in the sublime langnage of 
Milton, was aroused from sleep, and 
shook his invincible locks. Tyranny in- 
deed, and ijustice, will, by all historians 
not absolutely servile, be noted with 
moral reprobation ; but never shall we 
find in the English Avriters of the twelfth 
century that assertion of positive and na- 
tional rights which distinguishes those 

* Hist, of Exchequer, c. 12. 



Pakt II.] 



ENGLISH CONSTITUTION. 



343 



-/ 



of the next age, and particularly the 
monk of St. Alban's. From his prolix 
history we may collect three material 
propositions as to the state of the Eng- 
lish constitution during the long reign of 
Henry III. ; a prince to whom the epithet 
of worthless seems best applicable; and 
who, without committing any flagrant 
crimes, was at once insincere, ill-judging, 
and pusillanimous. The intervention of 
such a reign was a very fortunate circum- 
stance for public liberty; which might 
possibly have been crushed in its infancy, 
if an Edward had immediately succeeded 
to the throne of John. 

1. The Great Charter was always con- 
sidered as a fundamental law. But yet 
it was supposed to acquire additional se- 
curity by frequent confirmation. This 
it received, with some not inconsiderable 
variation, in the first, second, and ninth 
years of Henry's reign. The last of 
these is in our present statute-book, and 
has never received any alterations ; but 
Sir E. Coke reckons thirty-two instances 
wherein it ha.s been solemnly ratified. 
Several of these were during the reign 
of Henry HI., and were invariably pur- 
chased by the grant of a subsidy.* This 
prudent accommodation of parliament to 
the circumstances of their age not only 
made the law itself appear more inviola- 
ble, but established that correspondence 
between supply and redress, which for 
Bome centuries was the balance-spring 
of our constitution. The charter indeed 
was often grossly violated by their ad- 
ministration. Even Hubert de Burgh, 
of whom history speaks more favour- 
ably than of Henry's later favourites, 
though a faithful servant of the crown, 
seems, as is too often the case with 
such men, to have thought the king's 
honour and interest concerned in main- 
taining an unlimited prerogative.! The 
government was however much worse 
administered after his fall. From the 
great difficulty of compelling the king 
to observe the boundaries of law, the 
English clergy, to whom we are much 
indebted for their zeal in behalf of liberty 
during this reign, devised means of bind- 
Lng his conscience, and terrifying his 
imagination by religious sanctions. The 
solemn excommunication, accompanied 
Avith the most awful threats, pronounced 
against the violators of Magna Charta, is 
well known from our common histories. 
The king was a party to this ceremony, 
and swore to observe the charter. But 
Henry HI., though a very devout person. 



♦ Matt. Paris, p. 273. 



t Id., p. 281. 



had his own notions as to tlie validity of 
an oath that affected his power, and in- 
deed passed his life in a series of perju- 
ries. According to the creed of that 
age, a papal dispensation might annul any 
prior engagement ; and he was generally 
on sufficiently good terms with Itomc to 
obtain such an indulgence. 

2. Though the prohibition of levying 
aids or escuages without consent of par- 
liament had been omitted in all Henry's 
charters, an omission for which we can- 
not assign any other motive than the dis- 
position of his ministers to get rid of that 
restriction, yet neither one nor the other 
seem in fact to have been exacted at 
discretion throughout his reign. On the 
contrary, the barons frequently refused 
the aids, or rather subsidies, which his 
prodigahty was always demanding. In- 
deed, it would probably have been impos- 
sible for the king, however frugal, strip- 
ped as he was of so many lucrative 
though oppressive prerogatives by the 
Great Charter, to support the expenditure 
of government from his own resources. 
Tallages on his demesnes, and especially 
on the rich and ill-affected city of Lon- 
don, he imposed without scruple ; but it 
does not appear that he ever pretended 
to a right of general taxation. We may 
therefore take it for granted, that the 
clause in John's charter, though not ex- 
pressly renewed, was still considered as 
of binding force. The king was often 
put to great inconvenience by the refusal 
of supply; and at one time was reduced 
to sell his plate and jewels, which the 
citizens of London buying, he was pro- 
voked to exclaim with envious spite 
against their riches, which he had not 
been able to exhaust.* 

3. The power of granting money must 
of course imply the power of withholding 
it ; yet this has sometimes been little 
more than a nominal privilege. But in 
this reign the English parliament exer- 
cised their right of refusal, or, what was 
much better, of conditional assent. Great 
discontent was expressed at the demand 
of a subsidy in 1237 ; and the king alle 
ging that he had expended a great deal of 
money on his sister's marriage with the 
emperor, and also upon his own, the bar- 
ons answered, that he had not taken their 
advice in those affairs, nor ought they to 
share the punishment of acts of impru- 
dence they had not committed.! In 
1241, a subsidy having been demanded 



* M. Paris, p. C50. 

+ Quod hsBC omnia sine consilio fidelium suo- 
rum f:icerat, nee debuerant esse poenaj participes, 
qui fuerant a culpa immunes, p. 367. 



344 



EUROPE DURING THE MIDDLE AGES 



[Chap. Vm 



for the war in Poitou, the barons drew 
up a remonstrance, enumerating all the 
grants they had made on former occa- 
sions, but always on condition that the 
imposition should not be turned into pre- 
cedent. Their last subsidy, it appears, 
had been paid into the hands of four bar- 
ons, who were to expend it at their dis- 
cretion for the benelit of the king and 
kingdom ;* an early instance of parlia- 
mentary control over public expendi- 
ture. On a similar demand in 1214, the 
king was answered by complaints against 
the violation of the charter, the waste of 
former subsidies, and the maleadministra- 
tion of his servants.! Finally, the bar- 
ons positively refused any money ; and 
he extorted 1500 marks from the city of 
London. Some years afterward they 
declared their readiness to burden them- 
selves more than ever, if they could se- 
cure the observance of the charter; and 
requested that the justiciary, chancellor, 
and treasurer might be appointed with 
consent of parliament, according, as they 
asserted, to ancient custom, and might 
hold their offices during good behaviour.J 
Forty years of mutual dissatisfaction 
had elapsed, when a signal act of Henry's 
improvidence brought on a crisis which 
endangered his throne. Innocent IV., 
out of mere animosity against the family 
of Frederick II., left no means untried 
to raise up a competitor for the crown 
of Naples, which Manfred had occupied. 
Richard, earl of Cornwall, having been 
prudent enough to decline this specula- 
tion, the pope offered to support Henry's 
second son, Prince Edmund. Tempted 

* Matt. Paris, p. 515. 

t Id., p. 563,572. Matthew Paris's language is 
particularly uncourtly : rex cum iiistautissim^, ne 
dicam impudentissim^, auxilium pecuniare ab iis 
iterurn postularet, toties tesi et illusi, contradix- 
erunt ei uiianimiter et uno ore in facie. 

X De communi consilio regni, sicut ab antique 
consuetum et jiistum, p. 778. This was not so 
great an encroachment as it may appear. Ralph 
de Neville, bishop of Chichester, had been made 
chancellor in 1223, assensu totius regni ; itaque 
scilicet ut non deponeretur ab ejus sigilli custodiA 
nisi totius regni ordinunte consen.<u et consilio, p. 
266. Accordingly, the king demanding the great 
seal from him in 1236, he refused to give it up, alle- 
ging that, having received it in the general council 
of the kingdom, he could not resign it without the 
same authority, p. 363. And the parliament of 
1218 complained that the king had not followed 
the steps of his predecessors in appointing these 
three great officers by their consent, p. 646. What 
had been in fact the practice of former kings, I do 
not know ; but it is not likely to have been such 
as they represent. Henry, however, had named 
the Archbishop of York to the regency of the king- 
dom during his absence beyond sea in 1242, de 
consilio onmium comitum et baronum nostrorum et 
omnium fidelium nostrorum.— Rymer, t. i., p. 400. 



by such a prospect, the silly king involv- 
ed himself in irretrievable embarrass- 
ments by prosecuting an enterprise which 
could not possibly be advantageous to 
FiUgland, and upon which he entered 
without tlie advice of his parliament. 
Destitute himself of money, he was com- 
pelled to throw the expense of this new 
crusade upon the pope ; but the assist- 
ance of Rome was never gratuitous, and 
Henry actually pledged his kingdom for 
the money wliich she might expend in a 
war for her advantage and his own.* He 
did not even want the effrontery to tell 
parliament in 1257, introducing his son 
Edmund as King of Sicily, that they were 
bound for the repayment of 14,000 marks, 
with interest. The pope had also, in 
furtherance of the Neapolitan project, 
conferred upon Henry the tithes oif all 
benefices in England, as well as the first 
fruits of such as should be vacant. | Such 
a concession drew upon the king the im- 
placable resentment of his clergy, already 
complaining of the cowardice or conni- 
vance that had during all his reign ex- 
posed them to the shameless exactions 
of Rome. Henry had now indeed cause 
to regret his precipitancy. Alexander 
IV., the reigning pontiff, threatened him 
not only with a revocation of the grant 
to his son, but with an excommunication 
and general interdict, if the money ad- 
vanced on his account should not be im- 
mediately repaid,! ^"^ ^ Roman agent 
explained the demand to a parliament 
assembled at London. The sum required 
was so enormous, we are told, that it 
stnick all the hearers with astonishment 
and horror. The nobility of the realm 
were indignant to think that one man's 
supine folly should thus bring them to 
ruin.^ Who can deny tliat measures be- 
yond the ordinary course of the consti- 
tution were necessary to control so prod- 
igal and injudicious a sovereign! Ac- 
cordingly, the barons insisted that twen- 
ty-four persons should be nominated, half 
by the king and half by themselves, to 
reform the state of the kingdom. These 
were appointed on the meeting of the 
parliament at Oxford, after a prorogation. 

* Rymer, t. i., p. 771. f P. 813. 

t Idem, p. 632. This inauspicious negotiation 
for Sicily, which is not altogether unlike that of 
James 1. about the Spanish match, in its folly, bad 
success, and the dissatisfaction it occasioned at 
home, receives a good deal of illustration from doc- 
uments in Rymer's collection. 

<) Quantitas pecuniae ad tantam ascendit sum- 
mam, ut stuporem simul et horrorem in auribus 
generaret audientiiim. Doluit igitur nobilitas reg- 
ni, se unius hominis ita confundi supiua simplici- 
tate. — M. Pans, p. 827. 



Part II.] 



ENGLISH CONSTITUTION. 



349 



The seven years that followed are a 
revolutionary periof], the events of which 
we do not find satisfactorily explained by 
the historians of the time.* A king, di- 
vested of prerogatives hy his people, soon 
appears even to themselves an injured 
party. And as the baronial oligarchy 
acted with that arbitrary temper which 
is never pardoned in a government that 
has an air of usurpation about it, the 
royalists began to gain ground, chiefly 
through the defection of some who had 
joined in the original limitations imposed 
on the crown, usually called the provis- 
ions of Oxford. An ambitious man, con- 
fident in his talents and popularity, ven- 
tured to display loo marked a superiority 
above his fellows in the same cause. 
But neither his character, nor the balll6s 
of Lewes and Evesham, fall strictly with- 
in the limits of a constitutional history. 
It is, however, important to observe, that 
even in the moment of success, Henry 
III. did not presume to revoke any part 
of the Great Charter. His victory had 
been achieved by the arms of the Eng- 
lish nobility, who had, generally speaking, 
concurred in the former measures against 
his government, and whose 07)position to 
the l']arl of Leicester's usurpation was 
compatible with a steady attachment to 
constitutional liberty. | 

The opinions of eminent lawyers are 
Mmiiaiions Undoubtedly, where legi.slalive 
oriheprc- qj judicial authorities fail, the 
provedfrom best evidence that can be ad- 
Bractoii. duced in constitutional history. 
It will therefore be satisfactory to select 
a few passages from Bracton, himself a 
judge at the end of Henry HI.'s reign, by 
which the limitation of prerogative by 
law will clearly appear to have been 
fully established. " The king," says he, 
" must not be subject to any man, but to 
God and the law ; for the law makes him 
king. Let the king therefore give to the 
law what the law gives to him, dominion 
and power; for there is no king where 
will and not law bears rule."| " The 
king (in another place) can do nothing 
on earth, being the minister of God, but 
what he can do by law; nor is what is 
said (in the Pandects) any objection, that 

♦ The best account of the provisions of Oxford 
in 1260, and the circumstances connected with 
them, IS found in tlie Burton Annals. — 2 Gale. xv. 
Scnptorfis., p. 407. Many of these provisions were 
afterward enacted in the statute of Marlebridge. 

t The Earl of Glocester, whose personal quarrel 
with Monlfort had overthrown the baronial oligar- 
chy, wrote to the king in 12G7, ut provisiones Oxo- 
niae teneri facial per regnum suum, et ut promissa 
eibi apud Evesham de facto compleret.— Matt. 
Paris, p. 850. t L. i., c. 8. 



whatever the prince pleases shall be law ; 
because, by the words that follow in that 
text, it appears to design not any mere 
will of the prince, but that which is es- 
tablished by the advice of his counsel- 
lors, the king giving his authority, and 
deliberation being had upon it."* This 
passage is undoubtedly a misrepresenta- 
tion of the famous lex regia, which has 
ever been interpreted to convey the un- 
limited power of the people to their em- 
perors. f But the very circumstance of 
80 perverted a gloss put upon this text is 
a proof that no other doctrine could be 
admitted in the law of England. In an- 
other passage, Bracton reckons as supe- 
rior to the king, " not only God and the 
law, by which he is made king, but his 
court of earls and barons ; for the former 
(comites) are so styled as associates of 
the king, and whoever has an associate, 
has a master ;J so that if the king were 
without a bridle, that is, the law, they 
ought to put a bridle upon him."^ Sev- 
eral other passages in Bracton might be 
produced to the same import ; but these 
are sufficient to demonstrate the impor- 
tant fact, that however extensive or even 
indefinite might be the royal prerogative 
in the days of Henry HI., the law was 
already its superior, itself but made part 
of the law, and was incompetent to over- 
throw it. It is true, that in this very 
reign the practice of dispensing with stat- 
utes by a non-obstante was introduced, 
in imitation of the papal dispensations. || 
But this prerogative could only be ex- 
erted within certain limits, and however 
pernicious it may be justly thought, was, 
when thus understood and defined, not, 
strictly speaking, incompatible with the 
legislative sovereignty of parliament. 

In conformity with the system of 
France and other feudal countries, there 
was one standing council, which assist- 
ed the kings of England in the Tint kmg's 
collection and management of '^''""• 
their revenue, the administration of jus- 
tice to suiters, and the despatch of all 
public business. This was styled the 
king's court, and held in his palace, or 
wherever he was personally present. It 
was composed of the great officers; the 
chief justiciary ;^ the chancellor, the con- 

* L. iii., c. 9. These words are nearly copied 
from Glanvil's introduction to his treatise. 

+ See Selden ad Fletam, p. 1040. 

X 'I'his means, I suppose, that he who acts with 
the consent of others, must be in some degree re- 
strained by them ; but it is ill expressed. 

() L. ii.,c. 16. 

II .M. Paris, p. 701. 

if The chief justiciary was the greatest subject 
in England. Besides presiding in the king's court 



346 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII 



Stable, marshal, chamberlain, steward, 
and treasurer, with any others whom the 
king jnight appoint. Of this great court 
there was, as it seems, from the begin- 
ning, a particular branch, in which all 
matters relating to the revenue were 
exclusively transacted. This, though 
composed of the same persons, yet be- 
The court "^S ^^^^^ i" ^ different part of the 
ofexche- palace, and for different business, 
quer. ^yjjg distinguished from the king's 
court by the name of the exchequer ; a 
separation which became complete when 
civil pleas were decided and judgments 
recorded in this second court.* 

It is probable, that in the age next after 
the conquest, few causes in which the 
crown had no interest were carried be- 
fore the royal tribunals ; every man finding 
a readier course of justice in the manor or 
county to which he belonged. f But, by 
degrees, this supreme jurisdiction be- 
came more familiar ; and as it seemed 
less liable to partiality or intimidation 

and in the exchequer, he was originally, by virtue 
of his office, the regent of the kingdom during the 
absence of the sovereign ; which, till the loss of 
Normandy, occurred very frequently. Writs, at 
such times, ran in his name, and were teste'd by 
him. — Madox, Hist, of Excheq ,p. 16. His appoint- 
ment upon these temporary occasions was express- 
ed, ad custodiendum loco nostro terram nostram 
Angliae et pacem regni nostri; and all persons 
were enjoined to obey him tanquam justitiario nos- 
tro. —Rymer, t. i., p. 181. Sometimes, however, 
the king issued his own writ de ultra mare. The 
first time when the dignity of this office was im- 
paired was at the death of John, when the justicia- 
ry, Hubert de Burgh, being besieged in Dover cas- 
tle, those who proclaimed Henry HI. at Glocester, 
constituted the Earl of Pembroke governor of the 
king and kingdom, Hubert still retaining his of- 
fice. This is erroneously stated by Matthew Par- 
is, who has misled Spelman in his Glossary; but 
the truth appears from Hubert's answer to the ar- 
ticles of charge against him, and from a record in 
Madox's Hist, of Excheq., c. 21, note A, wherein 
the Ear! of Pembroke is named rector regis et reg- 
ni, and Hubert de Burgh justiciary. In 1241, the 
Archbishop of York was appointed to the regency 
during Henry's absence in Poitou, without the title 
of justiciary.— Rymer, t. i., p. 410. Still the office 
was so considerable, that the barons who met in the 
Oxford parliament of 1258 insisted that the justi- 
ciary should be annually chosen with their appro- 
bation. But the subsequent successes of Henry 
prevented this being established ; and Edward I. 
discontinued the office altogether. 

* For every thing that can be known about the 
Curia Regis, and especially this branch of it, the 
student of our constitutional history should have 
recourse to Madox's History of the Exchequer, 
and to the Dialogus de Scaccario, written in the 
time of Henry II. by Richard, bishop of Ely, 
though commonly ascribed to Gervase of Tilbury. 
This treatise he will find subjoined to Madox's 
work. 

+ Omnis causa terminetu comitatu, vel hundre- 
do, vel halimoto socam habentium. — Leges Henr. 
I., c. 9. 



than the provincial courts, suiters grew 
willing to submit to its expensiveness 
and inconvenience. It was obviously the 
interest of the king's court to give such 
equity and steadhiess to its decisions as 
might encourage this disposition. Noth- 
ing could be more advantageous to the 
king's authority, nor, what perhaps was 
more immediately regarded, to his reve- 
nue ; since a fine was always paid for 
leave to plead in his court, or to remove 
thither a cause commenced below. But 
because few, comparatively speaking, 
could have recourse to so distant a tribu- 
nal as that of the king's court, and per- 
haps also on account of the attachment 
which the English felt to their ancient 
right of trial by the neighbouring free- 
holders, Henry II. established institution 
itinerant justices, to decide civil of justices 
and criminal pleas within each °^ assize. 
county.* This excellent institution is 
referred by some to the twenty-second 
year of that prince ; but Madox traces it 
several years higher. f We have owed 
to it the uniformity of our common law, 
which would otherwise have been split, 
like that of France, into a multitude of 
local customs ; and we still owe to it the 
assurance, which is felt by the poorest 
and most remote inhabitant of England, 
that his right is weighed by the same in- 
corrupt and aciite understanding, upon 
which the decision of the highest ques- 
tions is reposed. The justices of assize 
seem originally to have gone their cir- 
cuits annually ; and as part of their duty 
was to set tallages upon royal towns, and 
superintend the collection of the revenue, 
we may be certain that there could be no 
long interval. This annual visitation 
was expressly confirmed by the twelfth 
section of Magna Charta, which provides 
also that no assize of novel disseisin, or 
mort d'ancestor, should be taken except 
in the shire where the lands in contro- 
versy lay. Hence this clause stood op- 
posed on the one hand to the encroach- 
ments of the king's court, which might 
otherwise, by drawing pleas of land to it- 
self, have defeated the suiter's right to a 
jury from the vicinage ; and on the other, 
to those of the feudal aristocracy, who 
hated any interference of the crown to 
chastise their violations of law or control 
their own jurisdiction. Accordingly, 
while the confederacy of barons against 



♦ Dialogus de Scaccario, p. 38. 

t Hist, of Exchequer, c. iii. Lord Lyttleton 
thinks that this institution may have been adopted 
in imitation of Louis VI., who half a century before 
had introduced a similar regulation in his doinin. 
ions. — Hist, of Henry II., vol. iii., p. 206. 



Part II.] 



ENGLISH CONSTITUTION. 



347 



Henry III. was in its full power, an at- 
tempt was made to prevent the regular 
circuits of the judges.* 

Long after the separation of the ex- 
The court of chequer from the king's court, 
Common another branch was detached 
Pleas. fQj. jj^g decision of private suits. 

This had its beginning, in Madox's opin- 
ion, as early as the reign of Richard I.f 
But it was completely estabhshed by 
Magna Charta. " Common Pleas," it is 
said in the fourteenth clause, " shall not 
follow our court, but be held in some 
certain place." Thus was formed the 
Court of Common Bench at Westminster, 
with full and, strictly speaking, exclusive 
jurisdiction over all civil disputes, where 
neither the king's interest, nor any mat- 
ter savouring of a criminal nature, was 
concerned. For of such disputes neither 
the court of king's bench nor that of ex- 
chequer can take cognizance, except by 
means of a legal fiction, which, in the 
one case, supposes an act of force, and 
in the other, a debt to the crown. 

The principal officers of state, who had 
Origin of originally been effective mem- 
the Com- bers of the king's court, began 
monLaw. ^^ withdraw from it after this 
separation into three courts of justice, 
and left their places to regular lawyers; 
though the treasurer and chancellor of 
the exchequer have still seats on the 
equity side of that court, a vestige of its 
ancient constitution. It would indeed 
have been difficult for men bred in camps 
or palaces to fulfil the ordinary functions 
of judicature, under such a system of 
law as had grown up in England. The 
rules of legal decision among a rude peo- 
ple are always very simple ; not serving 
much to guide, far less to control, the 
feelings of natural equity. Such were 
those which prevailed among the Anglo- 
Saxons ; requiring no subtler intellect or 
deeper learning than the earl or sheriff 
at the head of his county-court might be 
expected to possess. But a great change 

* Jiisticiarii regis Angliae, qui dicuntur itineris, 
missi Herfordiam, pro suo exequendo officio repel- 
luntur, allegantibus his qui regi adversabantur, ip- 
sos contra formam provisionum Oxoniae nuper fac- 
taruin venisse.— Chron. Nic. Trivet., A. D. 1260. 
I forget where I found this quotation. 

t Hist, of Exchequer, c. 19. Justices of the 
bench are mentioned several years before Magna 
Charta. But Madox thinks the chief justiciary of 
England might preside in the two courts, as well 
as m the exchequer. After the erection of the 
Common Bench, the style of the superior court 
began to alter. It ceased by degrees to be called 
the king's court. Pleas were said to be held coram 
rege, or coram rege ubicunque fuerit. And thus 
the court of king's bench was formed out of the re- 
mains of the ancient curia regis. 



was wrought in about a century after the 
conquest. Our English lawyers, prone 
to magnify the antiquity, like the other 
merits of their system, are apt to carry 
up the date of the common law, till, hke 
the pedigree of an illustrious family, it 
loses itself in the obscurity of ancient 
time. Even Sir Matthew Hale does not 
hesitate to say, that its origin is as undis- 
coverable as that of Nile. But though 
some features of the common law may 
be distinguishable in Saxon times, while 
our limited knowledge prevents us from 
assigning many of its peculiarities to any 
determinable period, yet the general char- 
acter and most essential parts of the sys- 
tem were of much later growth. The 
laws of the Anglo-Saxon kings, Madox 
truly observes, are as different from those 
collected by Glanvil as the laws of two 
different nations. The pecuniary com- 
positions for crimes, especially for hom- 
icide, which run through the Anglo- 
Saxon code down to the laws ascribed to 
Henry I.,* are not mentioned by Glanvil. 
Death seems to have been the regular 
punishment of murder, as well as rob- 
bery. Though the investigation by means 
of ordeal was not disused in his time,f 
yet trial by combat, of which we find no 
instance before the conquest, was evi- 
dently preferred. Under the Saxon gov- 
ernment, suits appear to have commen- 
ced, even before the king, by verbal or 
written complaint ; at least, no trace re- 
mains of the original writ, the foundation 
of our civil procedure.]: The descent of 
lands before the conquest was according 
to the custom of gavelkind, or equal par- 
tition among the children ;^ in the age of 
Henry I. the eldest son took the principal 
fief to his own share ;|| in that of Glanvil 
he inherited all the lands held by knight 
service ; but the descent of soccage lands 
depended on the particular custom of the 
estate. By the Saxon laws, upon the 
death of the son without issue, the father 
inherited ■,'^ by our common law, he is 
absolutely, and in every case, excluded. 
Lands were, in general, devisable by tes- 
tament before the conquest ; but not in 

* C. 70. 

+ A citizen of London, suspected of murder, hav- 
ing failed in the ordeal of cold water, was hanged 
by order of Henry II., though he offered 500 marks 
to save his life. — Hoveden, p. 566. It appears as 
if the ordeal were permitted to persons already con- 
victed by the verdict of a jury. If they escaped in 
this purgation, yet, in cases of murder, they were 
banished the realm. — Wilkins, Leges Anglo-Sax- 
on., p. 330. Ordeals were abolished about the be- 
ginning of Henry III.'s reign. 

t Hickes, Dissert. Epistol., p. 8. 

i) Leges Gulielmi, p. 225. 

II Leges Henr. 1., c. 70. 



348 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



the time of Henry II., except by particu- 
lar custom. These are sufficient samples 
of the differences between our Saxon 
and Norman jurisprudence; but the dis- 
tinct character of the two will strike 
more forcibly every one who peruses 
successively the laws published by Wil- 
kins, and the treatise ascribed to Glanvil. 
The former resemble the barbaric codes 
of the continent, and the capitularies of 
Charlemagne and his family; minute to 
an excess in apportioning punishments, 
but sparing and indefinite in treating of 
civil rights ; while the other, copious, 
discriminating, and technical, displays the 
characteristics as well as unfolds the prin- 
ciples of English law. It is difficult to 
assert any thing decisively as to the pe- 
riod between the conquest and the reign 
of Henry IL, which presents fewer mate- 
rials for legal history than the preceding 
age; but the treatise denominated the 
Laws of Henry I., compiled at the soonest 
about the end of Stephen's reign,* bears 
so much of a Saxon character, that I 
should be inclined to ascribe our present 
common law to a date, so far as it is ca- 
pable of any date, not much antecedent to 
the publication of Glanvil. f At the same 
time, since no kind of evidence attests 
any sudden and radical change in the ju- 
risprudence of England, the question must 
be considered as left in great obscurity. 
Perhaps it might be reasonable to con- 
jecture that the treatise called Leges 
Henrici Primi contains the ancient usa- 
ges still prevailing in the inferior juris- 
dictions, and that of Glanvil the rules 
established by the Norman lawyers of the 
king's court, which would of course ac- 
quire a general recognition and efficacy, 
in consequence of the institution of jus- 
tices holding their assizes periodically 
throughout the country. 

The capacity of deciding legal contro- 
Character versies was now only to be 
and defects found in men who had devo- 
oftheEng- ted themselves to that pecuUar 

lisUlaw. „. i J /• *^i- 

study ; and a race of such men 
arose, whose eagerness and even enthu- 
siasm in the profession of the law were 
stimulated by the self-complacency of in- 
tellectual dexterity in thridding its intri- 
cate and thorny mazes. The Normans 
are noted in their own country for a 
shrewd and litigious temper, which may 
have given a character to our courts of 



* The decretum of Gratian is quoted in this trea- 
tise, which was not published in Italy till 1151. 

+ Madox, Hist, of Exch., p. 122, edit. 1711. 
Lord Lyttleton, vol. ii., p. 267, has given reasons 
for supposing that Glanvil was not the author of 
this treatise, but some clerk under his direction. 



justice in early times. Something too 
of that excessive subtlety, and that pref« 
erence of technical to rational principles, 
which runs through our system, may be 
imputed to tne scholastic philosophy 
which was in vogue during the same 
period, and is marked by the same fea- 
tures. But we have just reason to boast 
of the leading causes of these defects; 
an adherence to fixed rules, and a jeal- 
ousy of judicial discretion, which have in 
no country, I believe, been carried to 
such a length. Hence precedents of 
adjudged cases, becoming authorities for 
the future, have been constantly noted, 
and form indeed almost the sole ground 
of argument in questions of mere law. 
But these authorities being frequently 
unreasonable and inconsistent, partly 
from the infirmity of all human reason, 
partly from the imperfect manner in 
which a number of unwarranted and 
incorrect reporters have handed them 
down, later judges grew anxious to elude 
by impalpable distinctions what they did 
not venture to overturn. In some in- 
stances, this evasive skill has been ap- 
plied to acts of the legislature. Those 
who are moderately conversant with the 
history of our law will easily trace other 
circumstances that have co-operated in 
producing that technical and subtle sys- 
tem which regulates the course of real 
property. For as that formed almost the 
whole of our ancient jurisprudence, it is 
there that we must seek its original char- 
acter. But much of the same spirit per- 
vades every part of the law. No tri- 
bunal of a civilized people ever borrowed 
so little, even of illustration, from the 
writings of philosophers, or from the in- 
stitutions of other countries. Hence law 
has been studied, in general, rather as an 
art than a science, with more solicitude 
to know its rules and distinctions, than 
to perceive their application to that for 
which all rules of law ought to have been 
established, the maintenance of public 
and private rights. Nor is there any 
reading more jejune and unprofitable to a 
philosophical mind than that of our an- 
cient law-books. Later times have in- 
troduced other inconveniences, till the 
vast extent and multiplicity of our laws 
have become a practical evil of serious 
importance, and an evil which, between 
the timidity of the legislature on the one 
hand, and the selfish views of practition- 
ers on the other, is likely to reach, in no 
long period, an intolerable excess. De- 
terred by an interested clamour against 
innovation from abrogating what is use- 
less, simplifying what is complex, or de- 



Paut II.] 



ENGLISH CONSTITUTION 



349 



termining what is doubtful, and always 
more inclined to stave off an immediate 
difficulty by some patchwork scheme of 
modifications and suspensions, than to 
consult for posterity in the comprehen- 
sive spirit of legal philosophy, we accu- 
mulate statute upon statute, and prece- 
dent upon precedent, till no industry can 
acquire, nor any intellect digest the mass 
of learning that grows upon the panting 
student ; and our jurisprudence seems 
not unlikely to be simplified in the worst 
and least honourable manner, a tacit 
agreement of ignorance among its pro- 
fessors. Muchindeed has already gone 
into desuetude within the last centu- 
ry, and is known only as an occult 
science by a small number of adepts. 
We are thus gradually approaching the 
crisis of a necessary reformation, when 
our laws, like those of Rome, must be 
cast into the crucible. It would be a dis- 
grace to the nineteenth century, if Eng- 
land could not find her Tribonian.* 

This establishment of a legal system, 
which must be considered as complete at 
the end of Henry III.'s reign, when the 
unwritten usages of the common law, as 
well as the forms and pre-cedents of the 
courts, were digested into the great work 
of Bracton, might, in some respects, con- 
duce to the security of puMic freedom. 
For, however highly the prerogative 
might be strained, it was incorporated 
with the law, and treated with the same 



* Whitelocke, just after the restoration, com- 
plains that " Now the volume of our statutes is 
grown or swelled to a great bigness." The vol- 
ume ! What would he have said to the monstrous 
birth of a volume triennially, filled with laws pro- 
fessing to be the deliberate work of the legislature, 
which every subject is supposed to read, remem- 
ber, and understand ! The excellent sense of the 
following sentences from the same passage may 
•well excuse me from quoting them, and, perhaps, 
in this age of bigoted averseness to innovation^ I 
have need of some apology for what I have ven- 
tured to say in the text. " I remember the opin- 
ion of a wise and learned statesman and lawyer 
(the Chancellor Oxenstiern) that multiplicity of 
written laws do but distract the judges, and render 
the law less certain , that where the law sets due 
and clear bounds between the prerogative royal 
and the rights of the people, and gives remedy in 
private causes, there needs no more laws to be in- 
creased, for thereby litigation will be increased like- 
wise. It were a work worth>f of a parliament, and 
cannot be done otherwise, to cause a review of all 
our statutes, to repeal such as they shall judge 
inconvenient to remain in force ; to confirm those 
which they shall think fit to stand, and those sev- 
eral statutes which are confused, some repugnant 
to others, many touching the same matters, to be 
reduced into certainty, all of one subject into one 
statute, that perspicuity and clearness may appear 
in our written laws, which at this day few students 
or sages can find in them." — Whitelocke's Com- 
mentary on Parliamentary Writ, vol. i., p. 409. 



distinguishing and argumentative subt- 
lety as every other part of it. What- 
ever things, therefore, it was asserted, 
that the king might do, it was a neces- 
sary implication that there were other 
things which he could not do ; else it 
were vain to specify the former. It is 
not meant to press this too far ; since un- 
doubtedly the bias of lawyers towards 
the prerogative was sometimes too dis- 
cernible. But the sweeping maxims of 
absolute power, which servile judges and 
churchmen taught the Tudor and Stuart 
princes, seem to have made no progress 
under the Plantagenet line. 

Whatever may be thought of the ef- 
fect which the study of the law 
had upon the rights of the sub- ^ght ofThe 
ject, it conduced materially to trown es- 
the security of good order by ^awistied. 
ascertaining the hereditary succession of 
the crown. Five kings out of seven that 
followed William the Conqueror were 
usurpers, according at least to modern 
notions. Of these, Stephen alone en- 
countered any serious opposition upon 
that ground; and with respect to him, it 
must be remembered, that all the barons, 
himself included, had solemnly sworn to 
maintain the succession of Matilda. Hen- 
ry II. procured a parliamentary settle- 
ment of the crown upon his eldest and 
second sons ; a strong presumption that 
their hereditary right was not absolutely 
secure.* A mixed notion of right and 
choice in fact prevailed as to the suc- 
cession of every European monarchy. 
The coronation oath and the form of 
popular consent then required were con- 
sidered as more material, at least to per- 
fect a title, than we deem them at present. 
They gave seisin, as it were, of the 
crown, and, in cases of disputed preten- 
sions, had a sort of judicial efficacy. 
The Chronicle of Dunstaple says, con- 
cerning Richard I., that he was "ele- 
vated to the throne by hereditary right, 
after a solemn election by the clergy and 
people :"| words that indicate the current 
principles of that age. It is to be observ- 
ed, however, that Richard took upon him 
the exercise of royal prerogatives, Avith- 
out waiting for his coronation.^ The 
succession of John has certainly passed 
in modern times for a usurpation. I do 
not find that it was considered as such 
by his own contemporaries on this side 
of the channel. The question of inher- 
itance between an uncle and the son of 



* Lyttleton, vol. ii., p. 14. 
t Idem, p. 42. Haereditario jure promovendus in 
regnum, post cleri et populi solennem electiouem. 
X Gui. Neubrigensis, I. iv., c. i. 



350 



EUROPE DURING THE MIDDLE AGES. 



rCMAP VIIL 



his deceased elder brother was yet unset- 
tled, as we learn from Glanvil, even in 
private succession.* In the case of sov- 
ereignties, which were sometimes con- 
tended to require different rules from or- 
dinary patrimonies, it was, and continued 
long to be, the most uncertain point in 
public law. John's pretensions to the 
crown might therefore be such as the 
English were justified in admitting, espe- 
cially as his reversionary title seems to 
have been acknowledged in the reign of 
his brother Richard. f If indeed we may 
place reliance on Matthew Paris, Arch- 
bishop Hubert, on this occasion, declared 
in the most explicit terms that the crown 
was elective, giving even to the blood 
royal no other preference than their merit 
might challenge. J Carte rejects this as 
a fiction of the historian; and it is cer- 
tainly a strain far beyond the constitu- 
tion, which, both before and after the 
conquest, had invariably limited the 
throne to one royal stock, though not 
strictly to its nearest branch. In a char- 
ter of the first year of his reign, John 
calls himself king "by hereditary right, 
and through the consent and favour of 
the church and people. "i^ 

It is deserving of remark, that during 
the rebellions against this prince and his 
son Henry HI., not a syllable was breathed 
in favour of Eleanor, Arthur's sister, who, 
if the present rules of succession had 
been established, was the undoubted heir- 
ess of his right. The barons chose rather 
to call in the aid of Louis, with scarcely 
a shade of title, though with much bet- 
ter means of maintaining himself. One 
should think that men whose fathers had 
been in the field for Matilda could make no 
difficulty about female succession. But I 
doubt whether, notwithstanding that pre- 
cedent, the crown of England was uni- 
versally acknowledged to be capable of de- 
scending to a female heir. Great averse- 
ness had been shown by the nobility of 
Henry I. to his proposal of settling the 
kingdom on his daughter. 1| And from a 
remarkable passage which I shall produce 
in a note, it appears that even in the reign 
of Edward HI. the succession was sup- 
posed to be confined to the male line.*^ 

* Glanvil, 1. viL, c. 3. f Hoveden, p. 702. 

J Hoveden, p. 165. 

^ Jure haereditario, et mediants tam cleri et pop- 
uli consensu et favore.— Gurdon on Parliaments, 
p. 139. 

II LyUleton, vol. i., p. 162. 

% This is intimated by the treaty made in 1339, 
for a marriage between the eldest son of Edward 
III. and the Duke of Brabant's daughter. Edward 
therein promises, that if his son should die before 
mm, leaving male issue, he will procure the con- 



At length, about the middle of the thir- 
teenth century, the lawyers applied to 
the crown the same strict principles of 
descent which regulate a private inherit- 
ance. Edward I. was proclaimed imme- 
diately upon his father's death, though 
absent in Sicily. Something, however, 
of the old principle may be traced in this 
proclamation, issued in his name by the 
guardians of the realm, where he asserts 
the crown of England " to have devolv- 
ed upon him by hereditary succession 
and the will of his nobles."* These last 
words were omitted in the proclama- 
tion of Edward II. ;t since whoso time 
the crown has been absolutely hereditary. 
The coronation oath, and the recognition 
of the people at that solemnity, are for- 
malities which convey no right either to 
the sovereign or the people, though they 
may testify the duties of each. 

I cannot conclude the present chap- 
ter without observing one most English 
prominent and characteristic gentry dea- 

\. ,. . , . ., .- titule of ex- 

distmction between the consti- elusive priv- 
tution of England and that of iieges 
every other country in Europe ; I mean 
its refusal of civil privileges to the lower 
nobility, or those whom we denominate 
the gentry. In France, in Spain, in Ger- 
many, wherever, in short, we look, the 
appellations of nobleman and gentleman 
have been strictly synonymous. Those 
entitled to bear them by descent, by ten- 
ure of land, by office or royal creation, 
have formed a class distinguished bj' 
privileges inherent in their blood from 
ordinary freemen. Marriage with noble 



sent of his barons, nobles, and cities (that is, of 
parliament ; nobles here meaning knights, if the 
word has any distinct sense) for such issue to in- 
herit the kingdom ; and if he die leaving a daugh- 
isr only, Edward or his heir shall make such pro- 
vision for her as belongs to the daughter of a king. 
— Ryiner, t. v., p. 114. It may be inferred from 
this instrument, that in Edward's intention, if not 
by the constitution, the Salique-law was to regulate 
the succession of the English crown. This law, 
it must be remembered, he was compelled to admit 
in his claim on the kingdom of France, though 
with a certain modification, which gave a pretext 
of title to himself. 

* Ad nos regni gubernaculum successione has- 
reditaria, ac procerum regni voluntate, et fidelitate 
nobis prsestita sit devolutum. — Brady (History of 
England, vol. ii., Appendix, p. 1) expounds proce- 
rum voluntate to moan willingness, not will ; as 
much as to say, tliey acted readily and without 
command. But in all probability it was intended 
to save the usual form of consent. 

t Rymer, t. iii., p. 1. Walsingham, however, 
asserts that Edward II. ascended the throne non 
tam jure hsreditario quam unanimi assensu proce- 
rum et magnatum, p. 95. Perhaps we should omit 
the word non, and he might intend to say, that the 
king had not only his hereditary title, but the free 
consent of his barons. 



Part II.] 



ISNCJLISH CONSTITUTION. 



351 



families, or the purchase of military fiefs, 
or the participation of many civil offices, 
were more or less interdicted to the 
commons of France and the empire. Of 
these restrictions, nothing, or next to 
nothing, was ever known in England. 
The law has never taken notice of gen- 
tlemen.* From the reign of Henry III. 
at least, the legal equaUty of all ranks 
below the peerage was, to every essen- 
tial purpose, as complete as at present. 
Compare two writers nearly contempo- 
rary, Bracton with Beaumanoir, and mark 
how the customs of England are distin- 
guishable in this respect. The French- 
man ranges the people under three divis- 
ions, the noble, the free, and the servile ; 
our countryman has no generic class 
but freedom and villanage.f No restraint 
seems ever to have lain upon marriage ; 
nor have the children even of a peer 
been ever deemed to lose any privilege 
by his union with a commoner. The 
purchase of lands held by knight-service 
was always open to all freemen. A few 
privileges indeed were confined to those 
who had received knighthood. J But, 
upon the whole, there was a virtual 
equality of rights among all the com- 
moners of England. What is most par- 
ticular is, that the peerage itself imparts 
no privilege except to its actual possessor. 
In every other country, the descendants 
of nobles cannot but themselves be noble, 
because their nobility is the immediate 
consequence of their b^rth. But though 
we commonly say that the blood of a 
peer is ennobled, yet this expression 
seems hardly accurate, and fitter for 
heralds than lawyers; since in truth 
nothing confers nobility but the actual 
descent of a peerage. The sons of peers. 



* It is hardly worth while, even for the sake of 
obviating cavils, to notice as an exception the stat- 
ute of 23 H. VI., c. 14, prohibiting the election of 
any who were not born gentlemen for knights of 
the shire. Much less should I have thought of 
noticing, if it had not been suggested as an objec- 
tion, the provision of the statute of Merton, that 
guardians in chivalry shall not marry their wards 
to villeins or burgesses, to their disparagement. 
Wherever the distinctions of rank and property 
are felt in the customs of society, such marriages 
will be deemed unequal ; and it was to obviate the 
tyranny of feudal superiors, who compelled their 
wards to accept a mean alliance, or to forfeit its 
price, that this provision of the statute was made. 
But this does not affect the proposition I had main- 
tained as to the legal equality of commoners, any 
more than a report of a master in chancery at the 
present day, that a proposed marriage for a ward 
of the court was unequal to what her station in 
society appeared to claim, would invalidate the 
same proposition. 

t Beaumanoir, c. 45. Bracton, 1. i., c. 6. 
t See for these, Selden's Titles of Honour, vol. 
iii., p. 80G. 



as we well know, are commoners, and y 
totally destitute of any legal right beyond "''^'' 
a barren precedence. 

There is no part, perhaps, of our con- 
stitution so admirable as this equality of 
civil rights ; this isonomia, which the phi- 
losophers of ancient Greece only hoped 
to find in democratical governments.* 
P>om the beginning our law has been no 
respecter of persons. It screens not the 
gentleman of ancient lineage from the 
judgment of an ordinary jury, nor from 
ignominious punishment. It confers not, 
it never did confer, those unjust immuni- 
ties from public burdens which the supe- 
rior orders arrogated to themselves upon 
the continent. Thus, while the privileges 
of our peers, as hereditary legislators of 
a free people, are incomparably more val- 
uable and dignified in their nature, they 
are far less invidious in their exercise 
than those of any other nobility in Eu- 
rope. It is, I am firmly persuaded, to 
this peculiarly democratical character of 
the English monarchy that we are in- 
debted for its long permanence, its regu- 
lar improvement, and its present vigour. 
It is a singular, a providential circum- 
stance, that in an age when the gradual 
march of civilization and commerce was 
so little foreseen, our ancestors, devia- 
ting from the usages of neiglibouring 
countries, should, as if deliberately, have 
guarded against that expansive force 
which, in bursting through obstacles im- 
providently opposed, has scattered havoc 
over Europe. 

This tendency to civil equality in the 
Elnglish law may, I think, be causes of 
ascribed to several concurrent ^^^ equality 

T .i_ /2 i 1 ii among free- 

causes. In the first place, the men in Eng 
feudal institutions were far less land, 
military in England than upon the conti- 
nent. From the time of Henry II., the 
escuage, or pecuniary commutation for 
personal service, became almost univer- 
sal. The armies of our kings were com- 
posed of hired troops, great part of whom 
certainly were knights and gentlemen, 
but who, serving for pay, and not by vir- 
tue of their birth or tenure, preserved 
nothing of the feudal character. It was 
not, however, so much for the ends of na- 
tional as of private warfare, that the re- 
lation of lord and vassal was contrived. 
The right which every baron in France 
possessed of redressing his own wrongs 

* U\r]Ooi ap^ov, Trpu>Tov fitv uvofta KaWi^ov t\ei, 
inovoiitav, says the advocate of democracy in the 
discussion of forms of government which Herodo- 
tus (Thalia, c. 80) has put into the mouths of 
three Persian satraps, after the murder of Smerdis; 
a scene conceived in the spirit of Corneille 



352 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



and those of his tenants by arms, render- 
ed their connexion strictly military. But 
we read very little of private wars in 
England. Notwithstanding some passa- 
ges in Glanvil, which certainly- appear to 
admit their legality, it is not easy to rec- 
oncile this with the general tenure of 
our laws.* They must always have been 
a breach of the king's peace, which our 
Saxon lawgivers were perpetually stri- 
ving to preserve, and which the conquer- 
or and his sons more effectually main- 
tained.! Nor can we trace many in- 
stances (some we perhaps may) of actual 
hostilities among the nobility of England 
after the conquest, except during such an 
anarchy as the reign of Stephen or the 
minority of Henry III. Acts of outrage 
and spoliation were indeed very frequent. 
The statute of Marlebridge, soon after the 
baronial wars of Henry HI., speaks of the 
disseisins that had taken place during the 
late disturbances ;| and thirty-five ver- 
dicts are said to have been given at one 
court of assize against Foulkes de 
Breaute, a notorious partisan, who com- 
manded some foreign mercenaries at the 
beginning of the same reign :^ but these 
are faint resemblances of that wide- 
spreading devastation which the nobles 
of France and Germany were entitled to 
carry among their neighbours. The most 
prominent instance, perhaps, of what may 
be deemed a private war, arose out of a 
contention between the earls of Gloces- 
ter and Hereford, in the reign of Edward 
I., during which acts of extraordinary 
violence were perpetrated ; but, far from 
its having passed for lawful, these pow- 
erful nobles were both committed to pris- 
on, and paid heavy fines. || Thus the 
tenure of knight-service was not in effect 
much more peculiarly connected with the 



* I have modified this passage, in consequence 
»f the just animadversion of a periodical critic. In 
ihe former edition I had stated too strongly the dif- 
ference which I still believe to have existed be- 
tween the customs of England and other feudal 
countries, in respect of private warfare. 

+ The penalties imposed on breaches of the 
peace in Wilkins's Anglo-Saxon laws are too nu- 
merous to be particularly inserted. One remarka- 
ble passage in Domesday appears, by mentioning a 
legal custom of private feuds in an individual man- 
or, and there only among Welshmen, to afford an in- 
ference that it was an anomaly. In the royal manor 
of Archenfeld in Herefordshire, if one Welshman 
kills another, it was a custom for the relations of 
the slain to assemble and plunder the murderer and 
his kindred, and burn their houses until the corpse 
should be interred, which was to take place by 
noon on the morrow of his death. Of this plunder 
the king had a third part, and the rest they kept for 
themselves, p. 179. 

t Stat. 52 H. III. () Matt. Paris, p. 271. 

il Rot. Pari., vol. i., p. 70. 



profession of arms than that of soccage. 
There was nothing in the former condi- 
tion to generate that high self-estimation 
which military habits inspire. On the 
contrary, the burdensome incidents of 
tenure in chivalry rendered soccage the 
more advantageous, though less honoura 
ble of the two. 

In the next place, we must ascribe a 
good deal of efficacy to the old Saxon 
principles that survived the conquest of 
William, and infused themselves into our 
common law. A respectable class of 
free soccagers, having, in general, full 
rights of alienating their lands, and hold- 
ing them probably at a small certain rent 
from the lord of the manor, frequent- 
ly occur in Domesday Book. Though, 
as I have already observed, these were 
derived from the superior and more for- 
tunate Anglo-Saxon ceorls, they were 
perfectly exempt from all marks of vil- 
lanage both as to their persons and es- 
tates. Some have derived their name 
from the Saxon soc, which signifies a 
franchise, especially one of jurisdiction. 
And whatever may come of this etymol- 
ogy, which is not perhaps so well estab- 
lished as that from the French word soc^ 
a ploughshare,* they undoubtedly were 
suiters to the court-baron of the lord, to 
whose soc, or right of justice, they be- 
longed. They were consequently judges 
in civil causes, determined before the 
manorial tribunal.! Such privileges set 



* It is not easy to decide between these two 
derivations of the words soccage and socman. 
On the one hand, the frequent recurrence in 
Domesday Book of the expression, socmanni de 
soca Algari, &c., seems to lead us to infer that 
these words, so near in sound, were related to 
each other. Sommer (on Gavelkind, p. 13) is 
clearly for this derivation. But Bracton, 1. ii., c. 
35, derives soccage from the French soc, and this 
etymology is curiously illustrated by a passage 
in Blomefield's Hist, of Norfolk, vol. iii., p. 538 
(folio). In the manor of Cawston, a mace with a 
brazen hand holding a ploughshare was carried 
before the steward, as a sign that it was held by 
soccage of the dutchy of Lancaster. Perhaps, 
however, this custom may be thought not sui5- 
ciently ancient to confirm Bracton's derivation. 

+ Territorial jurisdiction, the commencement 
of which we have seen before the conquest, was 
never so extensive as in governments of a more 
aristocratical character, either in criminal or civil 
cases. 1. In the laws ascribed to Henry I., it is 
said that all great offences could only be tried in 
the king's court, or by his commission, c. 10. 
Glanvil distinguishes the criminal pleas, which 
could only be determined before the king's judges, 
from those which belong to the sheriff. Treason, 
murder, robbery, and rape were of the former 
class ; theft of the latter, 1. xiv. The criminal ju- 
risdiction of the sheriff is entirely taken away by 
Magna Charta, c. 17. Sir E. Coke says, the ter- 
ritorial franchises of infangthef and outfangthef 
"had some continuance afterward, but either by 
this act, or per desuetudinem, for inconvenieace. 



Part III.] 



ENGLISH CONSTITUTION. 



353 



them greatly above the roturiers, or cen- 
siers of France. They were all Eng- 
lishmen, and their tenure strictly Eng- 
lish ; which seems to have given it 
credit in the eyes of our lawyers, when 
the name of Englishman was affected 
even by those of Norman descent, and 
the laws of Edward the Confessor be- 
came the universal demand. Certainly 
Glanvil, and still more Bracton, treat 
the tenure in free soccage with great re- 
spect. And we have reason to think 
that this class of freeholders was very 
numerous, even before the reign of Ed- 
ward I. 
But, lastly, the change which took 



these franchises within manors are antiquated and 
gone."—?. Inst., p. 31. The statute hardly seems 
to reach them ; and they were certainly both claim- 
ed and exercised as late as the reign of Edward 
i. Blomefield mentions two instances, both in 
1285, where executions for felony took place by 
the sentence of a court-baron. In these cases the 
lord's privilege was called in question at the as- 
sizes, by which means we learn the transaction ; 
it is very probable that similar executions occurred 
in manors where the jurisdiction was not dispu- 
ted.— (Hist, of Norfolk, vol. i., p. 313; vol. iii., p. 
60.) Felonies are now cognizable in the greater 
part of boroughs ; though it is usual, except in the 
most considerable places, to remit such as are not 
within benefit of clergy to the justices of jail de- 
livery on their circuit. This jurisdiction, however, 
is given, or presumed to be given, by special char- 
ter, and perfectly distinct from that which was 
feudal and territorial. Of the latter some vestiges 
appear to remam in particular liberties, as for ex- 
ample the Soke of Peterborough ; but most, if not 
all, of these local franchises have fallen, by right 
or custom, into the hands of justices of the peace. 
A territorial privilege somewhat analogous to 
criminal jurisdiction, but considerably more op- 
pressive, was that of private jails. At the parlia- 
ment of Merton, 1237, the lords requested to have 
their own prison for trespasses upon their parks 
and ponds, which the king refused. — Stat. Merton, 
c. II. But several lords enjoyed this as a particu- 
lar franchise ; which is saved by the statute 5 H. 
IV., c. 10, directing justices of the peace to im- 
prison no man, except in the common jail. 2. 
The civil jurisdiction of the court-baron was ren- 
dered insignificant not only by its limitation, iu 
personal suits, to debts or damages not exceeding 
forty shillings, but by the writs of toll and pone, 
which at once removed a suit for lands, in any 
stage of its progress before judgment, into the 
county court or that of the king. The statute of 
Marlebridge took away all appellant jurisdiction 
of the superior lord, for false judgment in the 
manorial court of his tenant, and thus aimed an- 
other blow at the feudal connexion. — 52 H. III., c. 
19. 3. The lords of the counties palatine of Ches- 
ter and Durham, and the royal franchise of Ely, 
had not only a capital jurisdiction in criminal 
cases, but an exclusive cognizance of civil suits ; 
♦he former still is retained by the bishops of Dur- 
ham and Ely, though much shorn of its ancient 
extent by an act of Henry VIII. (27 H. VIII., c. 
24), and administered by the king's justices of as- 
size ; the bishops or their deputies being put only 
on the footing of ordinary justices of the peace. — 
Id., s. 20, 

Z 



place in the constitution of parliament 
consummated the degradation, if we 
must use the word, of the lower nobili- 
ty : I mean, not so much their attend- 
ance by representatiwi instead of per- 
sonal summons, as their election by the 
whole body of freeholders, and their sep- 
aration, along with citizens and bur- 
gesses, from the house of peers. These 
changes will fall under consideration in 
the following chapter. 



PART III. 

THE ENGLISH CONSTITUTION. 

Reign of Edward I.— Confirmatio Chartarum. — 
Constitution of Parliament— the Prelates— the 
Temporal Peers. — Tenure by Barony— its 
Changes.— Difficulty of the Subject.— Origin of 
Representation of the Commons.— Knights of 
Shires — their Existence doubtfully traced 
through the Reign of Henry III. — Question 
whether Representation was confined to Ten- 
ants in capite discussed. — State of English 
Towns at the Conquest and afterward— their 
Progress.— Representatives from them summon 
ed to Parliament by Earl of Leicester.— Im 
probability of an earlier Origin.— Cases of St. Al- 
ban's and Barnstaple considered.— Parliaments 
under Edward I.— Separation of Knights and 
Burgesses from the Peers.— Edward II.— grad- 
ual progress of the Authority of Parliament 
traced through the Reigns of Edward III. and 
his successors down to Henry VI.— Privilege of 
Parhament— the early instances of it noticed. — 
Nature of Borough Representation. — Rights of 
Election— other particulars relative to Elec- 
tions. — House of Lords. — Baronies by Tenure 
— by Writ. — Nature of the latter discussed. — 
Creation of Peers by Act of Parliament and by 
Patent.— Summons of Clergy to Parliament.— 
King's Ordinary Council— its Judicial and other 
Power.— Character of the Plantagenet Govern- 
ment. — Prerogative— its Excesses — erroneous 
Views corrected. — Testimony of Sir John For- 
tescue to the Freedom of the Constitution.— 
Causes of the superior Liberty of England con- 
sidered.— State of Society in England.— W^ant 
of Pohce.— Villanage— its gradual extinction- 
latter years of Henry VI.— Regencies.— Instan- 
ces of them enumerated. — Pretensions of the 
House of York, and War of the Roses. — Ed- 
ward IV. — Conclusion. 

Though the undisputed accession of a 
prince like Edward the First Accession of 
to the throne of his father, Edward i.- 
does not seem so convenient a resting- 
place in history as one of those revolu- 
tions which interrupt the natural chain 
of events, yet the changes wrought du- 
ring his reign make it properly an epoch 
in the progress of these inquiries. And, 
indeed, as ours is emphatically styled a 
government by king, lords, and com- 
mons, we cannot perhaps in strictness 
carry it farther back than the admission 
of the latter into parhament ; so that, if 
the constant representation of the com • 



354 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



mons is to be referred to the age of Ed- 
ward the First, it will be nearer the truth 
to date the English constitution from that 
than from any earlier era. 

The various statutes affecting the law 
of property and administration of justice 
which have caused Edward I. to be 
named, rather hyperbolically, the Eng- 
lish Justinian, bear no immediate relation 
to our present inquiries. In a constitu- 
tional point of view, the principal object 
Connrma- IS that Statute entitled the Con- 
tionofthe firmation of the Charters, which 
charters. ^^^ ^ery reluctantly conceded 
by the king in the twenty-fifth year 
of his reign. I do not know that Eng- 
land has ever produced any patriots to 
whose memory she owes more gratitude 
than Humphrey Bohun, earl of Here- 
ford and Essex, and Roger Bigod, earl 
of Norfolk. In the Great Charter the 
base spirit and deserted condition of 
John take off something from the glory of 
the triumph, though they enhance the 
moderation of those who pressed no far- 
ther upon an abject tyrant. But to 
withstand the measures of Edward, a 
prince unequalled by any who had reign- 
ed in England since the Conqueror for 
prudence, valour, and success, required 
a far more intrepid patriotism. Their 
provocations, if less outrageous than 
those received from John, were such as 
evidently manifested a disposition in Ed- 
ward to reign without any control; a 
constant refusal to confirm the charters, 
which in that age were hardly deemed to 
bind the king without his actual consent ; 
heavy impositions, especially one on the 
export of wool, and other unwarranta- 
ble demands. He had acted with such 
unmeasured violence towards the clergy, 
on account of their refusal of further 
subsidies, that, although the ill-judged 
policy of that class kept their interests 
too distinct from those of the people, it 
was natural for all to be alarmed at the 
precedent of despotism.* These en- 
croachments made resistance justifiable, 
and the circumstances of Edward made 
it prudent. His ambition, luckily for the 
people, had involved him in foreign war- 
fare, from which he could not recede 
without disappointment and dishonour. 
Thus was wrested from him that famous 
statute, inadequately denominated the 



* The fullest account we possess of these do- 
mestic transactions from 1294 to 1298 is in Walter 
Hemingford, one of the historians edited by 
Hearne, p. 52 — 168. They have been vilely per- 
verted by Carte, but extremely well told by Hume, 
the first writer who had the merit of exposing the 
character cf Edward I. See too Knyghton, li 
Twysden's Decern Scriptores, col. 2492. 



Confirmation of the Charters, because it 
added another pillar to our constitution, 
not less important than the Great Char- 
ter itself.* 

It was enacted by the 25 E. I., that the 
charter of liberties, and that of the for- 
est, besides being explicitly confirmed,! 
should be sent to all sheriffs, justices in 
eyre, and other magistrates throughout 
the realm, in order to their publication 
before the people ; that copies of them 
should be kept in cathedral churches, and 
publicly read twice in the year, accom- 
panied by a solemn sentence of excom- 
munication against all who should in- 
fringe them; that any judgment given 
contrary to these charters should be in 
valid, and holden for naught. This au- 
thentic promulgation, these awful sanc- 
tions of the Great Charter, would alone 
render the statute of which we are speak- 
ing illustrious. But it went a great deal 
farther. Hitherto the king's prerogative 
of levying money, by name of tallage or 
prise, from his towns and tenants in de- 
mesne, had passed unquestioned. Some 
impositions, that especially on the ex- 
port of wool, affected all his subjects. 
It was now the moment to enfranchise 
the people, and give that security to pri- 
vate property which Magna Charta had 
given to personal liberty. By the 5th 
and 6th sections of this statute, "the aids, 
tasks, and prises" before taken are re- 
nounced as precedents ; and the king 
" grants for him and his heirs, as well to 
archbishops, bishops, abbots, priors, and 
other folk of holy church, as also to earls, 
barons, and to all commonalty of the 
land, that for no business from hence 
forth we shall take such manner of aids 
tasks, nor prises, but by the common as- 
sent of the realm, and for the common 
profit thereof, saving the ancient aids and 
prises due and accustomed." The toll 
upon wool, so far as levied by the king's 
mere prerogative, is expressly released 
by the seventh section. J 

* Walsingham, in Camden's Scriptores Rer. 
Anglicarum, p. 71 — 73. 

t Edward would not confirm the charters, not- 
withstanding his promise, without the words sal- 
vo jure coronaB nostrae ; on which the two earls 
retired from court. When the confirmation was 
read to the people at St. Paul's, says Hemingford, 
they blessed the king on seeing the charters with 
the great seal affixed : but when they heard the 
captious conclusion, they cursed him instead. At 
the next meeting of parliament, the king agreed to 
omit these insidious words, p. 168. 

t The supposed statute, De Taliagio non conce- 
dendo, is considered by Blackstone (Introduction 
to Charters, p. 67) as merely an abstract of the 
Confirmatio Chartarum. By that entitled Articuli 
super Chartas, 28 Edw. I., a court was erected in 



Paht III.] 



ENGLISH CONSTITUTION. 



855 



We come now to a part of our subject 
Constitu- exceedingly important, but more 
tionofpar- intricate and controverted than 
hament. ^^^y Qtj^g,.^ ^^jjg constitution of 
parliament. I have taken no notice of 
this in the last section, in order to pre- 
sent uninterruptedly to the reader the 
gradual progress of our legislature down 
to its complete establishment under the 
Edwards. No excuse need be made for 
the dry and critical disquisition of the fol- 
lowing pages ; but among such obscure 
inquiries, I cannot feel myself as secure 
from error as I certainly do from par- 
tiality. 

One constituent branch of the great 
The spirit- councils, held by William the 
uai peers. Conqueror and all his succes- 
sors, was composed of the bishops, and 
the heads of religious houses holding 
their temporaUties immediately of the 
crown. It has been frequently maintain- 
ed, that these spiritual lords sat in par- 
liament only by virtue of their baronial 
tenure. And certainly they did all hold 
baronies, which, according to the analogy 
of lay peerages, were sufficient to give 
them such a share in the legislature. 
Nevertheless, I think that this is rather 
too contracted a view of the rights of 
the English hierarchy, and, indeed, by 
implication, of the peerage. For a great 
council of advice and assent in matters 
of legislation or national importance was 
essential to all the northern governments. 
And all (ff them, except perhaps the Lom- 
bards, invited the superior ecclesiastics 
to their councils ; not upon any feudal 
notions, which at that time had hardly 
begun to prevail, but chiefly as represent- 
atives of the church and of religion itself; 
next, as more learned and enlightened 
counsellors than the lay nobility ; and in 
some degree, no doubt, as rich proprie- 
tors of land. It will be remembered 
also that ecclesiastical and temporal af- 
fairs were originally decided in the same 
assemblies, both upon the continent and 
in England. The Norman conquest, 
which destroyed the Anglo-Saxon nobil- 
ity, and substituted a new race in their 
stead, could not affect the immortality 
of church possessions. The bishops of 
William's age were entitled to sit in his 
councils by the general custom of Eu- 
rope, and by the common law of England,* 



which the conquest did not overturn. 
Some smaller arguments might be urged 
against the supposition that their legis- 
lative rights are merely baronial; such 
as that the guardian of the spiritualities 
was commonly summoned to parliament 
during the vacancy of a bishopric, and 
that the five sees created by Henry VIII. 
have no baronies annexed to them ;* but 
the former reasoning appears less tech- 
nical and confined. t 



every county, of three knights or others, to be 
elected by the commons of the shire, whose sole 
province was to determine offences against the two 
charters, with power of punishing by fine and im- 
prisonment ; but not to extend to any case where- 
in the remedy by writ was already provided. 
* Hody (Treatise on Convocations, p. 126) states 
Z 2 



the matter thus : in the Saxon times all bishops 
and abbots sat and voted in the state councils or 
parliament as such, and not on account of their 
tenures. After the conquest, the abbots sat there 
not as such, but by virtue of their tenures as bar- 
ons ; and the bishops sat in a double capacity, as 
bishops and as barons. 

* Hody, p. 128. 

t It is rather a curious speculative question, and 
such only, we may presume, it will long continue, 
whether bishops are entitled, on charges of treason 
or felony, to a trial by the peers. If this question 
be considered either theoretically or according to 
ancient authority, I think, the affirmative proposi- 
tion is beyond dispute. Bishops were at all times 
members of the great national council, and fully 
equal to lay lords in temporal power as well as dig- 
nity. Since the conquest, they have held their tem- 
poralities of the crown by a baronial tenure, which, 
if there be any consistency in law, must unequivo- 
cally distinguish them from commoners ; since 
any one holding by barorfy might be challenged 
on a jury, as not being the peer of the party whom 
he was to try. It is true that they take no share 
in the judicial power of the house of lords in cases 
of treason or felony ; but this is merely in conform- 
ity to those ecclesiastical canons which prohibited 
the clergy from partaking in capital judgment, and 
they have always withdrawn from the house on 
such occasions under a protestation of their right 
to remain. Had it not been for this particularity, 
arising wholly out of their own discipline, the 
question of their peerage could never have come 
into dispute. As for the common argument, that 
they are not tried as peers because they have no 
inheritable nobility, I consider it as very frivolous ; 
since it takes for granted the precise matter in 
controversy, that an inheritable nobility is neces- 
sary to the definition of peerage, or to its incident- 
al privileges. 

If we come to constitutional precedents, by 
which, when sufficiently numerous and unexcep- 
tionable, all questions of this kind are ultimately 
to be determined, the weight of ancient authority 
seems to be in favour of the prelates. In the fif- 
teenth year of Edward HI. (1310), the king brought 
several charges against Archbishop Stratford. He 
came to parliament with a declared intention of 
defending himself before his peers. The king in- 
sisted upon his answering in the court of exche- 
quer. Stratford, however, persevered ; and the 
house of lords, by the king's consent, appointed 
twelve of their number, bishops, earls, and barons, 
to report whether peers ought to answer criminal 
charges in parliament and not elsewhere. Thia 
committee reported to the king in full parliament, 
that the peers of the land ought not to be arraign- 
ed nor put on trial, except in parliament and by 
their peers. The archbishop upon this prayed the 
king, that inasmuch as he had been notoriously de- 
famed, he might be arraigned in full parhament 
before the peers, and there make answer; which 



356 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



Next to these spiritual lords are the 
earls and barons, or lay peerage of Eng- 
land. The former dignity was perhaps 
not so merely official as in the Saxon 
times, although the earl was entitled to 
the third penny of all emoluments ari- 
sing from the administration of justice in 

request the king granted. — Rot. Pari., vol. ii., p. 
127. Collier's Eccles. Hist., vol. i., p. 543. The 
proceedings against Stratford went no farther, but 
1 think it impossible not to admit that his right to 
trial as a peer was fully recognised both by the 
king and lords. 

This is however the latest, and perhaps the 
only instance of a prelate's obtaining so high a priv- 
ilege. In the preceding reign of Edward II. , if 
we can rely on the account of Walsingham (p. 
119), Adam Orleton, the factious bishop of Here- 
ford, had first been arraigned before the house 
of lords, and subsequently convicted by a com- 
mon jury ; but the transaction was of a singular 
nature, and the king might probably be influenced 
by the difficulty of obtaining a conviction from the 
temporal peers, of whom many were disaffected to 
him, m a case where privilege of clergy was vehe- 
mently claimed. But about 1357, a bishop of Ely, 
being accused of harbouring one guilty of murder, 
though he demanded a trial by the peers, was com- 
pelled to abide the verdict of a jury. — Collier, p. 
557. In the 31st of Edward III. (1358), the abbot 
of Missenden was hanged for coining. — 2 Inst., p. 
635. The abbot of this monastery appears from 
Dugdale to have been summoned by writ, in the 
49th of Henry III. If fie actually held \<y barony, 
I do not perceive any strong distinction between 
his case and that of a bishop. The leading prece- 
dent, however, and that upon which lawyers prin- 
cipally found their denial of this privilege to the 
bishops, is the case of Fisher, who was certainly 
tried before an ordinary jury ; nor am I aware that 
any remonstrance was made by himself, or com- 
plaint by his friends, upon this ground. Cranmer 
was treated in the same manner ; and from these 
two, being the most recent precedents, though 
neither of them in the best of times, the great plu- 
rahty of law-books have drawn a conclusion that 
bishops are not entitled to trial by the temporal 
peers. Nor can there be much doubt that, when- 
ever the occasion shall occur, this will be the de- 
cision of the house of lords. 

There are two peculiarities, as it may naturally 
appear, in the abovementioned resolutions of the 
lords in Stratford's case. The first is, that they 
claim to be tried, not only before their peers, but 
in parliament. And in the case of the Bishop of 
Ely, it is said to have been objected to his claim of 
trial by his peers, that parliament was not then sit- 
ting (Collier, ubi sup.). It is most probable, there- 
fore, that the court of the lord high steward, for the 
special purpose of trying a peer, was of more re- 
cent institution ; as appears also from Sir E. Coke's 
expressions. — 4 Inst., p. 58. The second circum- 
stance that may strike a reader is, that the lords 
assert their privilege in all criminal cases, not dis- 
tinguishing misdemeanors from treasons and felo- 
nies. But in this they were undoubtedly warrant- 
ed by the clear language of Magna Charta, which 
makes no distinction of the kind. The practice of 
trying a peer for misdemeanors by a jury of com- 
moners, concerning the origin of which I can say 
nothing, is one of those anomalies which too often 
render our laws capricious and unreasonable in the 
eyes of impartial men. 
Since writing the above note I have read Stil- 



the county-courts, and might, perhaps, 
command the militia of his county when 
it was called forth.* Every earl was also 
a baron, and held an honour or barony of 
the crown, for which he paid a higher re- 
lief than an ordinary baron, probably on 
account of the profits of his earldom. I 



lingfleet's treatise on the judicial power of the bish- 
ops in capital cases ; a right which though now, I 
think, abrogated by non-claim and a course of contra- 
ry precedents, he proves beyond dispute to have ex- 
isted by the common law and constitutions of Cla- 
rendon, to have been occasionally exercised, and to 
have been only suspended by their voluntary act. In 
the course of this argument he treats of the peerage 
of the bishops, and produces abundant evidence 
from the records of parliament that they were sty- 
led peers, for which, though convinced from gen- 
eral recollection, I had not leisure or disposition to 
search. But if any doubt should remain, the statute 
25 E. III., c. 6, contains a legislative declaration 
of the peerage of bishops. The whole subject is 
discussed with much perspicuity and force by Slil- 
lingfleet, who seems however not to press very 
greatly the right of trial by peers, aware no doubt 
of the weight of opposite precedents.— (Stilling- 
fieet's Works, vol. in., p. 820.) In one distinction, 
that the bishops vote in their judicial functions as 
barons, but in legislation as magnates, which War- 
burton has brought forward as his own in the Alli- 
ance of Church and State, Stillingfleet has per 
haps not taken the strongest ground, nor sufficient 
ly accounted for their right of sitting in judgment 
on the impeachment of a commoner. Parliament- 
ary impeachment, upon charges of high public 
crimes, seems to be the exercise of a right inherent 
in the great council of the nation, some traces of 
which appear even before the conque.st (Chron. 
Sax., p. 164, 169) ; independent of and superseding 
that of trial by peers, which, if the 29th section of 
Magna Charta be strictly construed, is only requi- 
red upon endictments at the king's suit. And this 
consideration is of great weight in the question 
still unsettled, whether a commoner can be tried 
by the lords upon an impeachment for treason. 

The treatise of Stillingfleet was written on oc- 
casion of the objection raised by the commons to 
the bishops voting on the question of Lord Danby's 
pardon, which he pleaded in bar of his impeach- 
ment. Burnet seems to suppose that their right of 
final judgment had never been defended, and con- 
founds judgment with sentence. Mr. Hargrave, 
strange to say, has made a much greater blunder, 
and imagined that the question related to their 
right of voting on a bill of attainder, which no one, 
I believe, ever disputed. — Notes on Co. Litt., 
134 b. 

* Madox, Baronia Anglica, p. 138. Dialogus de 
Scaccario, 1. i., c. 17. Lyttleton's Henry II., vol. 
ii., p. 217. The last of these writers supposes, con- 
trary to Selden, that the earls continued to be gov- 
ernors of their counties under Henry II. Stephen 
created a few titular earls, with grants of crown 
lands to support them ; but his successor resumed 
the grants, and deprived them of their earldoms. 

In Rymer's Foedera, vol. i., p. 3, we find a grant 
of Matilda, creating Miloof Glocester earl of Here- 
ford, with the moat and castle of that city in fee 
to him and his heirs, the third penny of the rent 
of the city, and of the pleas in the county, three 
manors and a forest, and the service of three ten- 
ants in chief, with all their fiels, to be held with 
all privileges and liberties as fully as ever any earl 
in England had possessed them. 



Paet III.] 



ENGLISH CONSTITUTION. 



357 



will not pretend to say whether titular 
earldoms, absolutely distinct from the 
lieutenancy of a county, were as ancient 
as the conquest, which Madox seems to 
think, or were considered as irregular, so 
late as Henry II., according to Lord Lyt- 
tleton. In Dugdale's Baronage, I find 
none of this description in the first Nor- 
man reigns, for even that of Clare was 
connected with the local earldom of Hert- 
ford. 

It is universally agreed, that the only 
Question aa baronies known for two centu- 
to the na- ries after the conquest were in- 
ture of bar- cident to the tenure of land held 
""*^' immediately from the crown. 

There are, however, material difficulties 
in the way of rightly understanding their 
nature, which ought not to be passed 
over, because the consideration of baro- 
nial tenures will best develop the forma- 
tion of our parliamentary system. Two 
of our most eminent legal antiquaries, 
Selden and Madox, have entertained dif- 
ferent opinions as to the characteristics 
and attributes of this tenure. 

According to the first, every tenant in 
Theory of chief by knight-service was an 
Seiden ; honorary or parliamentary baron 
by reason of his tenure. All these were 
summoned to the king's councils, and 
were peers of his court. Their baronies, 
or honours, as they were frequently call- 
ed, consisted of a number of knight's 
fees, that is, of estates, from each of 
which the feudal service of a knight was 
due ; not fixed to thirteen fees and a 
third, as has been erroneously conceived, 
but varying according to the extent of the 
barony, and the reservation of service at 
the time of its creation. Were they 
more or fewer, however, their owner was 
equally a baron, and summoned to serve 
the king in parliament with his advice and 
judgment, as appears by many records 
and passages in history. 

B-ut about the latter end of John's reign, 
some only of the most eminent tenants 
in chief were summoned by particular 
writs ; the rest by one general summons 
through the sheriffs of their several coun- 
ties. This is declared in the Great Char- 
ter of that prince, wherein he promises 
that whenever an aid or scutage shall be 
required, faciemus summoneri archiepis- 
copos, episcopos, abbates, comites et ma- 
jores barones regni sigillatim per literas 
nostras. Et praeterea faciemus summon- 
eri in generali per vicecomites et ballivos 
nostros omnes alios qui in capite tenent de 
nobis. Thus the barons are distinguished 
from other tenants in chief, as if the for- 
mer name were only applicable to a par- 



ticular number of the king's immediate 
vassals. But it is reasonable to thinlc, 
that before this charter was made, it had 
been settled by the law of some other par- 
liament, how these greater barons should 
be distinguished from the lesser tenants in 
chief; else what certainty could there be 
in an expression so general and indefi- 
nite? And this is likely to have pro- 
ceeded from the pride with which the 
ancient and wealthy barons of the realm 
would regard those newly created by 
grants of escheated honours, or those 
decayed in estate, who yet were by their 
tenures on an equality with themselves. 
They procured, therefore, two innova- 
tions in their condition ; first, that these 
inferior barons should be summoned gen- 
erally by the sheriff, instead of receiving 
their particular writs, which made an 
honorary distinction ; and next, that they 
should pay relief, not as for an entire 
barony, one hundred marks ; but at the 
rate of five pounds for each knight's fee 
which they held of the crown. This 
changed their tenure to one by mere 
knight-service, and their denomination to 
tenants in chief. It was not difficult 
afterward for the greater barons to ex- 
clude any from coming to parliament as 
such, without particular writs directed to 
them, for which purpose some law was 
probably enacted in the reign of Henry 
III. If indeed we could place reliance 
on a nameless author whom Camden has 
quoted, this limitation of the peerage to 
such as were expressly summoned de- 
pended upon a statute made soon after 
the battle of Evesham. But no one has 
ever been able to discover Camden's au- 
thority, and the change was probably of 
a much earlier date.* 

Such is the theory of Seiden, which, if 
it rested less upon conjectural ^^., , 
alterations in the law, would un- ^ ° ' 
doubtedly solve some material difliculties 
that occur in the opposite view of the 
subject. According to Madox, tenure by 
knight's-service in chief was always dis- 
tinct from that by barony. It is and obser- 
not easy, however, to point out vations up- 
the characteristic differences of °" ''°"*' 
the two ; nor has that eminent antiquary, 
in his large work, the Baronia Anglica, 
laid down any definition, or attempted to 
explain the real nature of a barony. The 
distinction could not consist in the num- 
ber of knight's fees ; for the barony of 
Hway ton consisted of only three ;t while 
John de Baliol held thirty fees by mere 



* Selden's Works, vol. iii., p. 713—743. 
t Lyttleton's Henry II., vol. it., p. 212. 



358 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



knight-service. Nor does it seem to 
have consisted in the privilege or ser- 
vice of attending pariianient, since all 
tenants in chief were usually summoned. 
But whatever may have been the line 
between these modes of tenure, there 
seems complete proof of their separation 
long before the reign of John. Tenants 
in chief are enumerated distinctly from 
earls and barons in the charter of Henry I. 
Knights, as well as barons, are named as 
present in the parliament of Northamp- 
ton in 1165, in that held at the same town 
in 1176, and upon other occasions.* Sev- 
eral persons appear in the Liber Niger 
Scaccarii, a roll of military tenants made 
in the age of Henry H., who held single 
knight's fees of the crown. It is, how- 
ever, highly probable, that in a lax sense 
of the word, these knights may some- 
times have been termed barons. The 
author of the Dialogus de Scaccario 
speaks of those holding greater or lesser 
baronies, including, as appears by the 
context, all tenants in chief.f The for- 
mer of these seem to be the majores bar- 
ones of King John's Charter. And the 
secundas dignitatis barones, said by a con- 
temporary historian to have been present 
in the parliament of Northampton, were 
in all probability no other than the 
knightly tenants of the crown. J For the 
word baro, originally meaning only a 
man, was of very large significance, and 
is not unfrequently applied to common 
freeholders, as in the phrase of court- 
baron. It was used too for the magis- 
trates or chief men of cities, as it is still 
for the judges of the exchequer, and the 
representatives of the Cinque-Ports. 

The passage, however, before cited 
from 'the Great Charter of John affords 
one spot of firm footing in the course of 
our progress. Then, at least, it is evi- 
dent that all tenants in chief were entitled 
to their summons ; the greater barons 
by particular writs, the rest through one 
directed to their sheriff. The epoch when 
all, who, though tenants in chief, had not 
been actually summoned, were deprived 
of their right of attendance in parliament, 
IS again involved in uncertainty and con. 

♦ Hody on Convocations, p. 222, 234. 

+ Lib. ii., c. 9. 

X Hody and Lord Lyttleton maintain these 
" barons of the second rank" to have been the sub- 
vassals of the crown ; tenants of the great barons, 
to whom the name was sometimes improperly ap- 
plied. This was very consistent with their opin- 
ion, that the commons were a part of parliament at 
that tune. But Hume, assuming at once the truth 
of their interpretation in this instance, and the 
falsehood of their system, treats it as a deviation 
from the established rule, and a proof of the unset- 
tled State of the constitution. 



jecture. The unknown writer quoted by 
Camden seems not sufficient authority 
to establish his assertion, that they were 
excluded by a statute made after the 
battle of Evesham. The principle was 
most likely acknowledged at an earlier 
time. Simon de Montfort summoned 
only twenty-three temporal peers to his 
famous parhament. In the year 1255, 
the barons complained that many of their 
number had not received their writs, ac- 
cording to the tenour of the charter, and 
refused to grant an aid to the king till 
they were issued.* 

But it would have been easy to disap- 
point this mode of packing a parliament, 
if an unsummoned baron could have sat 
by mere right of his tenure. The opin- 
ion of Selden, that a law of exclusion 
was enacted towards the beginning of 
Henry's reign, is not liable to so much 
objection. But perhaps it is unnecessary 
to frame an hypothesis of this nature. 
Writs of summons might probably be 
older than the time of John ;f and when 
this had become the customary and reg- 
ular preliminary of a baron's coming to 
parliament, it was a natural transition to 
look upon it as an indispensable condi- 
tion ; in times when the prerogative 
was high, the law unsettled, and the 
service in parliament deemed by many 
still more burdensome than honourable. 
Some omissions in summoning the king's 
tenants to former parliaments may per- 
haps have produced the abovementioned 
provision of the Great Charter, which 
had a relation to the imposition of taxes, 
wherein it was deemed essential to ob- 
tain a more universal consent than was 
required in councils held for state, or 
even for advice. | 

It is not easy to determine how long 
the inferior tenants in chief con- YVhether 
tinned to sit personally in par- mereten- 
liament. In tlie charters of ^"1^ in 
Henry III., the clause which "ended'Var- 
we have been considering is liamentun- 
omitted : and I think there is no ^,Y "^"'y 
express proof remaining, that 
the sheriff was ever directed to summon 
the king's military tenants within his 
county in the manner which the charter 

* M. Paris, p. 785. The barons even tell the 
king that this was contrary to his charter, in 
which nevertheless the clause to that effect, con- 
tained in his father's charter, had been omitted. 

t Henry II., in 1175, forbade any of those who 
had been concerned in the late rebellion to come 
to his court without a particular summons. — Carte, 
vol. ii., p. 249. 

+ Upon the subject of tenure by barony, besides 
the writers already quoted, see West's Inquiry into 
the Method of creating Peers, and Carte's Hislorv 
of England, vol. ii., p. 247. 



Part III.] 



ENGLISH CONSTITUTION. 



359 



of John required. It appears, however, 
that they were in fact niember.s of par- 
liament on many occasions during Hen- 
ry's reign, which shows that they were 
summoned either by particular writs or 
through the sheriff; and the latter is the 
more plausible conjecture. There is in- 
deed great obscurity as to the constitu- 
tion of parliament in this reign ; and the 
passages which I am about to produce 
may lead some to conceive that the free- 
holders were represented even from its 
beginning. I rather incline to a different 
opinion. 

In the Magna Charta of 1 Henry III., 
it is said : Pro hkc donatione et conces- 
sione .... archiepiscopi, episcopi, com- 
ites, barones, milites, et libere tenentes, 
et onmes de regno nostro dederunt no- 
bis quintam decimam partem omnium 
bonorum suorum mobihum.* So in a 
record of 19 Henry III. : Comites, et 
barones, et omnes alii de toto regno nos- 
tro Angiias, spontanea voluntate sua con- 
cesserunt nobis efficax auxilium.f The 
largeness of these words is, however, 
controlled by a subsequent passage, 
which declares the tax to be imposed ad 
mandatum omnium comitum et baronum 
et omnium aliorum qui de nobis ienent in 
capite. And it seems to have been a gen- 
eral practice to assume the common 
cpnsent of all ranks to that which had 
actually been agreed by the higher. In 
a similar writ, 21 Henry III., the ranks 
of men are enumerated specifically; ar- 
chiepiscopi, episcopi, abbates, priores, et 
clerici terras habentes quae ad ecclesias 
suas non pertinent, comites, barones, mi- 
lites, et liberi homines, pro se et suis vil- 
lanis, nobis concesserunt in auxilium tri- 
cesimam partem omnium mobilium.| 
In the close roll of the same year, we 
have a writ directed to the archbish- 
ops, bishops, abbots, priors, earls, barons, 
knights, and freeholders (liberi homines) 
of Ireland, in which an aid is desired of 
them ; and it is urged, that one had been 
granted by his fideles Angliaj.^ 

But this attendance in parliament of 
inferior tenants in chief, some of them 
too poor to have received knighthood, 
grew insupportably vexatious to them- 
selves, and was not well liked by the 
king. He knew them to be dependant 
upon the barons, and dreaded the conflu- 
ence of a multitude who assumed the 

* Hody on Convocations, p. 293. 

t Brady, Introduction to History of England, 
Appendix, p. 43. 

X Brady's History of England, vol. i., Appendix, 
p. IB2. 

ij Brady's Introduction, p. 94. 



privilege of coming in arras to the ap- 
pointed place. So inconvenient and mis- 
chievous a scheme could not long subsist 
among an advancing people, and fortu- 
nately the true remedy was discovered 
with little difficulty. 

The principle of representation, in its 
widest sense, can hardly be un- Origin and 
known to any government not P^gres* "f 

., , • 1 T 1 parliament 

purely democratical. In almost ary rejire- 
every country the sense of tlie sentauon. 
whole is understood to be spoken by a 
part, and the decisions of a part are bind- 
ing upon the whole. Among our ances- 
tors, the lord stood in the place of his 
vassals, and, still more unquestionably, 
the abbot in that of his monks. The 
system indeed of ecclesiastical coun- 
cils, considered as organs of the church, 
rested upon the principle of a virtual or 
an express representation, and had a ten- 
dency to render its application to nation 
al assemblies more familiar. 

The first instance of actual representa- 
tion which occurs in our history is only 
four years after the conquest : when Will- 
iam, if we may rely on Hoveden, caused 
twelve persons skilled in the customs of 
England to be chosen from each county, 
who were sworn to inform him rightly 
of their laws ; and these, so ascertained, 
were ratified by the consent of the great 
council. This Sir Matthew Hale asserts 
to be " as sufficient and effectual a par- 
liament as ever was held in England."* 
But there is no appearance that these 
twelve deputies of each county were in- 
vested with any higher authoi|fty than 
that of declaring their ancient usages. 
No stress can be laid, at least, on this in- 
sulated and anomalous assembly, the ex- 
istence of which is only learned from an 
historian of a century later. 

We find nothing that can arrest our 
attention, in searching out the origin of 
county representation, till we come to a 
writ in the fifteenth year of John, direct- 
ed to all the sheriffs in the following 
terms: Rex Vicecomiti N., salutem. 
Praecipimtis tibi quod omnes milites bal- 
livae tua; qui summoniti fuerunt esse 
apud Oxoniam ad Nos a die Omnium 
Sanctorum in quindecim dies venire fa- 
cias cum armis suis : corpora vero bar- 
onum sine armis singulariter, et quatuor 
discretes milites de comitatu tuo, illuc ve- 
nire facias ad eundem tcrminum, ad lo- 
quendum nobiscum de negotiis regni 
nostri. For the explanation of this ob- 
scure writ, I must refer to what Prynnef 



* Hist, of Common Law, vol. i., p. 202. 
t 2 Prynne's Register, p. IG. 



360 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



has said ; but it remains problematical, 
whether these four knights (the only 
clause which concerns our purpose) were 
to be elected by the county, or return- 
ed, in the nature of a jury, at the discre- 
tion of the sheriff. Since there is no 
sufficient proof whereon to decide, we 
can only say with hesitation, that there 
may have been an instance of county 
representation in the fifteenth year of 
John. 

We may next advert to a practice, of 
which there is very clear proof in the 
reign of Henry III. Subsidies granted in 
parliament were assessed, not as in for- 
mer times, by the justices upon their cir- 
cuits, but by knights freely chosen in the 
county-court. This appears by two writs, 
one of the fourth and one of the ninth 
year of Henry HI.* At a subsequent pe- 
riod, by a provision of the Oxford parlia- 
ment, in 1258, every county elected four 
knights to inquire into grievances, and 
deliver their inquisition into parliament.! 

The next writ now extant that wears 
the appearance of parliamentary repre- 
sentation is in the thirty-eighth of Hen- 
ry HI. This, after reciting that the earls, 
barons, and other great men (caiteri mag- 
nates) were to meet at London three 
weeks after Easter, with horses and arms, 
for the purpose of sailing into Gascony, 
requires the sheriff to compel all within 
his jurisdiction, who hold twenty pounds 
a year of the king in chief, or of those 
in ward of the king, to appear at the 
same time and place. And that besides 
those mentioned he shall cause to come 
before tne king's council at Westminster, 
on the fifteenth day after Easter, two 
good and discreet knights of his county, 
whom the men of the county shall have 
chosen for this purpose, in the stead of 
all and each of them, to consider, along 
with the knights and other counties, what 
aid they will grant the king in such an 
emergency.^ In the principle of elec- 
tion, and in the object of the assembly, 
which was to grant money, this certain- 
ly resembles a summons to parliament. 
There are indeed anomalies, sufficiently 
remarkable upon the face of the writ, 
which distinguish this meeting from a reg- 
ular parliament. But when the scheme 
of obtaining money from the commons 
of shires through the consent of their 
representatives had once been entertain- 
ed, it was easily applicable to more for- 
mal councils of the nation. 

A few years later there appears anoth- 



* Brady's Introduction, Appendix, pp. 41 and 44. 
t Brady's Hist, of England, vol. i., Appendix, p. 
221 J 2 Prynne, p. 23. 



er writ analogous to a summons. Du- 
ring the contest between Henry HI. and 
the confederate barons in 1261, they pre- 
sumed to call a sort of parliament, sum- 
moning three knights out of every coun- 
ty, secum tractaturos super conimunibus 
negotiis regni. This we learn only by 
an opposite writ, issued by the king, di- 
recting the sheriff to enjoin these knights 
who had been convened by the earls of 
Leicester and Glocester to their meeting 
at St. Alban's, that they should repair in- 
stead to the king at Windsor, and to no 
other place, nobiscum super prsmissis 
colloquium habituros.* It is not abso- 
lutely certain that these knights were 
elected by their respective counties. But 
even if they were so, this assembly has 
much less the appearance of a parliament 
than that in the thirty- eighth of Henry HI. 

At length, in the year 1265, the forty- 
ninth of Henry HI., while he was a cap- 
tive in the hands of Simon de Montfort, 
writs were issued in his name to all the 
sheriffs, directing them to return two 
knights for the body of their county, 
with two citizens or burgesses for every 
city and borough contained within it. 
This therefore is the epoch at which the 
representation of the commons becomes 
indisputably manifest, even should we 
reject altogether the more equivocal in- 
stances of it which have just been enu- 
merated. * 

If, indeed, the knights were still elect- 
ed by none but the king's mill- ,„, , 

•i i -J..,! J r Whether the 

tary tenants, if the mode of rep- Y\\\g\\\^ were 
resentation was merely adopt- elected by 
ed to spare them the iuconve- [n^g^^eraK 
nience of personal attendance, 
the immediate innovation in our polity 
was not very extensive. This is an in- 
teresting, but very obscure topic of in- 
quiry. Spelman and Brady, with other 
writers, have restrained the original right 
of election to tenants in chief, among 
whom, in process of time, those holding 
under mesne lords, not being readily dis- 
tinguishable in the hurry of an election, 
contrived to slide in, till at length their 
encroachments were rendered legitimate 
by the statute 7 H. IV., c. 15, which put 
all suiters to the county-court on an 
equal footing as to the elective franchise. 
The argument on this side might be plau- 
sibly urged with the following reasoning. 
The spirit of a feudal monarchy, which 
compelled every lord to act by the advice 
and assent of his immediate vassals, es- 
tablished no relation between him and 
those who held nothing at his hands. 

* 2 Prynne, p. 27. 



Part III.] 



ENGLISH CONSTITUTION. 



361 



They were included, so far as he was 
concerned, in their superiors ; and the 
feudal incidents were due to him from 
the whole of his vassal's fief, whatever 
tenants might possess it by sub-infeuda- 
tion. In England, the tenants in chief 
alone were called to the great councils 
before representation was thought of, as 
is evident both by the charter of John 
and by the language of many records; 
nor were any others concerned in levying 
aids or escuages, which were only due 
by virtue of their tenure. These mili- 
tary tenants were become in the reign 
of Henry III. far more numerous than 
they had been under the Conqueror. If 
we include those who held of the king 
ut de honore, that is, the tenants of baro- 
nies escheated or in ward, who may 
probably have enjoyed the same privile- 
ges, being subject, in general, to the same 
burdens, their number will be greatly 
augmented, and form no inconsiderable 
portion of the freeholders of the kingdom. 
After the statute commonly called Quia 
emptores in the eighteenth of Edward I., 
they were likely to increase much more, 
as every licensed ahenation of any por- 
tion of a fief by a tenant in chief would 
create a new freehold immediately de- 
pending upon the crown. Many of these 
tenants m capite held very small fractions 
of knight's fees, and were consequently 
not called upon to receive knighthood. 
They were plain freeholders, holding in 
chief, and the liberi homines or libere 
tenentes of those writs which have been 
already quoted. The common form in- 
deed of writs to the sheriff directs the 
knights to be chosen de communitate 
comitatus. But the word communitas, 
as in boroughs, denotes only the superior 
part : it is not unusual to find mention 
in records of communitas populi or omnes 
de regno, where none are intended but 
the barons, or, at most, the tenants in 
chief. If we look attentively at the ear- 
liest instance of summoning knights of 
shires to parliament, that in 38 H. III., 
which has been noticed above, it will 
appear that they could only have been 
chosen by military tenants in chief. The 
object of calling this parliament, if par- 
liament it were, was to obtain an aid from 
the military tenants, who, holding less 
than a knight's fee, were not required to 
do personal service. None then, surely, 
but the tenants in chief could be electors 
upon this occasion, which merely re- 
spected their feudal duties. Again, to 
come much lower down, we find a series 
of petitions in the reigns of Edward III. 
and Richard II., which seem to lead us 



to a conclusion that only tenants in chief 
were represented by the knights of shires. 
The writ for wages directed the sheriff 
to levy them on the commons of the 
county, both within franchises and with- 
out (tam intra libertates quam extra). 
But the tenants of lords holding by bar- 
ony endeavoured to exempt themselves 
from this burden, in which they seem 
to have been countenanced by the king. 
This led to frequent remonstrances from 
the commons, who finally procured a 
statute, that all lands, not discharged by 
prescription, should contribute to the 
payment of wages.* But, if these mesne 
tenants had possessed equal rights of 
voting with tenants in chief, it is impos- 
sible to conceive that they would have 
thought of claiming so unreasonable an 
exemption. Yet, as it would appear harsh 
to make any distinction between the 
rights of those who sustained an equal 
burden, we may perceive how the free- 
holders, holding of mesne lords, might on 
that account obtain after the statute a 
participation in the privilege of tenants 
in chief. And without supposing any 
partiality or connivance, it is easy to 
comprehend, that while the nature of 
tenures and services was so obscure as 
to give rise to continual disputes, of 
which the ancient records of the King's 
Bench are full, no sheriff could be very 
accurate in rejecting the votes of com- 
mon freeholders, repairing to the county- 
court, and undistinguishable, as must be 
allowed, from tenants in capite upon 
other occasions, such as serving on ju- 
ries, or voting on the election of coro- 
ners. To all this it yields some corrob- 
oration, that a neighbouring though long 
hostile kingdom, who borrowed much of 
her law from our own, has never admitted 
any freeholders, except tenants in chief 
of the crown, to a suffrage in county 
elections. These attended the pariia- 
ment of Scotland in person till 1428, when 
a law of James I. permitted them to send 
representatives.! 

Such is, I think, a fair statement of 
the arguments that might be alleged by 
those who would restrain the right of 
election to tenants of the crown. It may 
be urged on the other side, that the genius 
of the feudal system was never com- 
pletely displayed in England ; much less 
can we make use of that policy to ex- 
plain institutions that prevailed under 
Edward I. Instead of aids and scutages 

* 12 Ric. II., c. 12. Prynne's 4th Register. 

t Pinkerton's Hist, of Scotland, vol. i., p. 120, 
357. But this law was not regularly acted upon 
tiU 1587, p. 368. 



362 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



levied upon the king's military tenants, 
the crown found ample resources in sub- 
sidies upon moveables, from which no 
class of men was exempted. But the stat- 
ute that abolished all unparliamentary 
taxation led, at least in theoretical princi- 
ple, to extend the elective franchise to as 
large a mass of the people as could con- 
veniently exercise it. It was even in the 
mouth of our kings, that what concerned 
all should be approved by all. Nor is 
the language of all extant writs less ad- 
verse to the supposition, that the right 
of suffrage in county elections was lim- 
ited to tenants in chief. It seems extraor- 
dinary, that such a restriction, if it existed, 
should never be deducible from these in- 
struments ; that their terms should inva- 
riably be large enough to comprise all 
freeholders. Yet no more is ever re- 
quired of the sheriff than to return two 
knights, chosen by the body of the coun- 
ty. For they are not only said to be re- 
turned pro eommunitate, but " per com- 
munitatem," and " de assensu totius com- 
munitatis." Nor is it satisfactory to al- 
lege, without any proof, that this word 
should be restricted to the tenants in 
chief, contrary to what must appear to 
be its obvious meaning.* Certainly if 
these tenants of the crown had found in- 
ferior freeholds usurping a right of suf- 
frage, we might expect to find it the sub- 
ject of some legislative provision, or at 
least of some petition and complaint. 
And, on the other hand, it would have 
been considered as unreasonable to levy 
the wages due to knights of the shire for 
their service in parliament on those who 
had no share in their election. But it 
appears by Avrits at the very beginning 
of Edward II. 's reign, that wages were 
levied " de eommunitate comitatus."f It 
will scarcely be contended that no one 
was to contribute under this writ but 



* What can one who adopts this opinion of Dr. 
Brady say to the following record? Rex militi- 
bus, iibens hominibus, et toti communitati coniita- 
tus Wygorniae tarn intra libertates quam extra, 
salutem. Cum coniites, barones, milites, liberi 
homines, et communitatns comitatuum regni nostri 
vicesimam omnium bonorum suorum mobilium, 
civesque et burgenses et communitates omnium 
civitatum et burgorum ejusdem regni, necnon te- 
nentes de antiquis dominicis coronaj nostrae quin- 
decimam bonorum suorum mobilium nobis conces- 
serunt. — Pat. Rot., 1 K. II., in Rot. Pari., vol. i.,p. 
442. See also p. 241 and p. 269. If the word coin- 
munitas is here used in any precise sense, which, 
when possible, we are to suppose in construing a 
legal instrument, it must designate, not the tenants 
in chief, but the inferior class, who, though neither 
freeholders nor free burgesses, were yet contribu- 
table to the subsidy on their goods. 

t Madox, Firma Burgi, p. 99 and p. 102, note Z. 



tenants in chief; and yet the word com- 
munitas can hardly be applied to differ- 
ent persons, when it occurs in the same 
instrument and upon the same matter. 
The series of petitions above mentioned 
relative to the payment of wages rather 
tends to support a conclusion, that all 
mesne tenants had the right of suffrage, 
if they thought fit to exercise it, since it 
was earnestly contended that they were 
liable to contribute towards that expense. 
Nor does there appear any reason to 
doubt that all freeholders, except those 
within particular franchises, were suiters 
to the county-court ; an institution of no 
feudal nature, and in which elections 
were to be made by those present. As 
to the meeting to which knights of shires 
were summoned in 38 H. III., it ought 
not to be reckoned a parliament, but rath- 
er one of those anomalous conventions 
which sometimes occurred in the unfix- 
ed state of government. It is at least 
the earliest known instance of represent- 
ation, and leads us to no conclusion in 
respect to later times, when the com- 
mons had become an essential part of 
the legislature, and their consent was 
required to all public burdens. 

This question, upon the whole, is cer- 
tainly not free from considerable difficul- 
ty. The legal antiquaries are divided. 
Prynne does not seem to have doubted 
but that the knights were " elected in the 
full county, by and for the whole coun- 
ty," without respect to the tenure of the 
freeholders.* But Brady and Carte are 
of a different opinion. | Yet their dispo» 
sition to narrow the basis of the constitu- 
tion is so strong, that it creates a sort of 
prejudice against their authority. And 
if I might offer an opinion on so obscure 
a subject, I should be much inclined to 
believe, that even from the reign of Hen- 
ry I., the election of knights by all free- 
holders in the county-court, without re- 
gard to tenure, was little, if at all, differ- 
ent from what it is at present. J 

The progress of towns in several con- 
tinental countries from a COndi- Progress of 
tion bordering upon servitude to 'owns, 
wealth and liberty has more than once 
attracted our attention in other parts of 
the present work. Their growth in Eng- 
land, both from general causes and imi- 
tative policy, was very similar and near- 
ly coincident. Under the Anglo-Saxon 
line of sovereigns, we scarcely can dis- 



* Prynne's 2d Register, p. 50. 

■t Carte's Hist, of England, vol. ii., p. 250. 

X The present question has been discussed with 
much ability in the Edinburgh Review, vol. xxvi., 
p. 341. 



Part III.] 



ENGLISH CONSTITUTION. 



363 



cover in our scanty records the condition 
of their inhabitants ; except retrospect- 
ively from the great survey of Domesday 
Book, which displays the state of Eng- 
land under Edward the Confessor. Some 
attention to commerce had been shown 
by Alfred and Athelstan ; and a merchant 
who had made three voyages beyond sea 
was raised by a law of the latter monarch 
to the dignity of a thane.* This privilege 
was not perhaps often claimed ; but the 
burgesses of towns were already a dis- 
tinct class from the ceorls or rustics, and, 
though hardly free according to our esti- 
mation, seem to have laid the foundation 
of more extensive immunities. It is 
probable, at least, that the English towns 
had made full as great advances towards 
emancipation as those of France. At 
the conquest, we find the burgesses or 
inhabitants of towns living under the su- 
periority or protection of the king, or of 
some other lord to whom they paid an- 
nual rents, and determinate dues or cus- 
toms. Sometimes they belonged to dif- 
ferent lords ; and sometimes the same 
burgesses paid customs to one master, 
while he was under the jurisdiction of an- 
other. They frequently enjoyed special 
privileges as to inheritance ; and in two or 
three instances they seem to have possess- 
ed common properly, belonging to a sort 
of guild or corporation ; but never, as far 
as appears by any evidence, had they a 
municipal administration by magistrates 
of their own choice. f Besides the regu- 

* Wilkins, p. 71. 

t Burgenses Exonias urbis habent extra civita- 
tem terrain duodecira carucatarum : qua; nullam 
consuetudinem reddunt nisi ad ipsam civitatem. — 
Domesday, p. 100. At Canterbury the burgesses 
had forty-five houses without the city, de quibus 
ipsi habebant gablum et consuetudinem, rex autem 
socam et sacam ; ipsi quoque burgenses habebant 
de rege Iriginta tres acras prati in gildam suam, p. 
2. In Lincoln and Stamford some resident propri- 
etors, called Lagemanni, had jurisdiction (socam 
et sacam) over their tenants. But nowhere have 
I been able to discover any trace of internal self- 
government ; unless Chester may be deemed an 
exception, where we read of twelve judices civita- 
tis ; but by whom constituted does not appear. 
The word lageman seems equivalent to judex. 
The guild mentioned above at Canterbury was, in 
all probability, a voluntary association : so at Do- 
ver we find the burgesses' guildhall, gihalla bur- 
gensium, p. 1. 

Many of the passages in Domesday relative to 
the state of burgesses are collected in Brady's His- 
tory of Boroughs ; a work which, if read with due 
suspicion of the author's honesty, will convey a 
great deal of knowledge. 

Since the former part of this note was written, 
I have met with a charter granted by Henry H. to 
Lincoln, which seems to refer, more explicitly than 
any similar instrument, to municipal privileges of 
jurisdiction enjoyed by the citizens under Edward 
Uje Confessor. These charters, it is well known, 



lar payments, which were in general not 
heavy, they were liable to tallages at the 
discretion of their lords. This burden 
continued for two centuries, with no lim- 
itation, except that the barons were lat- 
terly forced to ask permission of the 
king before they set a tallage on their 
tenants, which was commonly done 
when he imposed one upon his own.* 
Still the towns became considerably rich- 
er ; for the profits of their traffic were 
undiminished by competition ; and the 
consciousness that they could not be in- 
dividually despoiled of their possessions, 
like the villeins of the country around, 
inspired an industry and perseverance 
which all the rapacity of Norman kings 
and barons was unable to daunt or over- 
come. 

One of the earliest and most important 
changes in the condition of the Towns let ia 
burgesses was the conversion fee-farm, 
of their individual tributes into a perpet- 
ual rent from the whole borough. The 
town was then said to be affermed, or 
let in fee-farm to the burgesses and their 
successors for ever.f Previously to such 
a grant, the lord held the town in his de- 
mesne, and was the legal proprietor of 
the soil and tenements ; though I by no 
means apprehend that the burgesses were 
destitute of a certain estate in their pos- 



do not always recite what is true ; yet it is possi- 
ble that the citizens of Lincoln, which had been 
one of the five Danish towns, sometimes mentioned 
with a sort of distinction by writers before the con- 
quest, might be in a more advantageous situation 
than the generality of burgesses. Sciatis me 
concessisse civibus meis Lincoln, omnes libertates 
et consuetudines et leges suas, quas habuerunt 
tempore Edwardi et Will, et Henr. regum Anglis, 
et gildam suam mercatoriam de hominibus civita- 
tis et de aliis mercatoribus comitatus, sicut illain 
habuerunt tempore predictorum antecessoruin nos- 
trorum, regum Anglioe, melius et liberius. Et om- 
nes homines qui infra quatuor divisas civitates ma- 
nent et mercatum deducunt, sint ad gildas, et con- 
suetudines et assisas civitatis, sicut melius fue- 
runt temp. Edw. et Will, et Henr. regum Angliae. — 
Rymer, t. i., p. 40 (edit. 1816). 

I am indebted to the friendly remarks of the pe- 
riodical critic whom I have before mentioned, for 
reminding me of other charters of the same age, 
expressed in a similar manner, which in my haste 
1 had overlooked, though printed in common books. 
But whether these general words ought to out- 
weigh the silence of Domesday Book, I am not 
prepared to decide. I have admitted below, that the 
possession of corporate property implies an elect- 
ive government for its administration, and I think 
it perfectly clear that the guilds made by-laws for 
the regulation of their members. Yet this is 
something different from municipal jurisdiction 
over all ttie inhabitants of a town. 

* Madox, Hist, of Exchequer, c. 17. 

t Madox, Firma Burgi, p. 1. There is one in- 
stance, I know not if any more could be found, of 
a firma burgi before the conquest. It was at Hun- 
tingdon. — Domesday, p. 203. 



364 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



sessions. But of a town in fee-farm he 
only kept the superiority, and the in- 
heritance of the annual rent, which he 
might recover by distress.* The burgess- 
es held their lands by burgage-tenure, 
nearly analogous to, or rather a species 
of, free soccage.f Perhaps before the 
grant they might correspond to modern 
copy-holders. It is of some importance 
to observe, that the lord, by such a grant 
of the town in fee-farm, whatever we 
may think of its previous condition, di- 
vested himself of his property, or lucra- 
tive dominion over the soil, in return for 
the perpetual rent ; so that tallages sub- 
sequently set at his own discretion upon 
the inhabitants, however common, can 
hardly be considered as a just exercise 
of the rights of proprietorship. 

Under such a system of arbitrary tax- 
Charters of atiou, however, it was evident to 
iiicorpora- the most Selfish tyrant that the 
tioii. wealth of his burgesses was hi^ 

wealth, and their prosperity his interest; 
much more were liberal and sagacious 
monarchs, like Henry II., inclined to en- 
courage them by privileges. From the 
time of William Rufus, there was no 
reign in which charters were not granted 
to different towns, of exemption from 
tolls on rivers and at markets, those 
lighter manacles of feudal tyranny; or 
of commercial franchises ; or of immuni- 
ty from the ordinary jurisdictions ; or, 
lastly, of internal self-regulation. Thus 
the original charter of Henry I. to the 
city of London;}: concedes to the citizens, 
in addition to valuable commercial and 
fiscal immunities, the right of choosing 
their own sheriff and justice, to the ex- 
clusion of every foreign jurisdiction.^ 
These grants, however, were not in gen- 
eral so extensive till the reign of John.|| 

* Madox, p. 12, 13. t Id., p. 21. 

X I have read somewhere that this charter was 
granted in 1101. But the instrument itself, which 
is only preserved by an Inspeximus of Edward IV., 
does not contam any date. — Rymer, t. i., p. 11 
(edit. 1816). Could it be traced so high, the cir- 
cumstance would be remarkable, as the earliest 
charters granted by Louis VI., supposed to be the 
father of these institutions, are several years later. 

i) This did not, however, save the citizens from 
fining in one hundred mari<s to the king for this 
privilege. — Mag. Rot.,5 Sleph., apud Madox, Hist. 
Exchequer, t. xi. 1 do not know that the charter 
of Henry I. can be suspected ; but Brady, in his 
treatise of Boroughs (p. 38, edit. 1777), does not 
think proper once to mention it ; and indeed uses 
many expressions incompatible with its existence. 

II Blomefield, Hist, of Norfolk, vol. ii., p. 16, says 
that Henry I. granted the same privileges by char- 
ter to Norwich in 1122, which London possessed. 
Yet it appears that the king named the port-reeve 
or orovost ; but Blomefield suggests that he was 
probably recommended by the citizens, the office 
being annual. 



Before that time, the interior arrange- 
ment of towns had received a new oigan- 
ization. In the Saxon period we find vol- 
untary associations, sometimes religious, 
sometimes secular; in some cases for 
mutual defence against injury, in others 
for mutual relief in poverty. These 
were called guilds, from the Saxon verb 
gildan, to pay or contribute, and exhibit- 
ed the natural, if not the legal character 
of corporations.* At the time of the con- 
quest, as has been mentioned above, such 
voluntary incorporations of the burgess- 
es possessed in some towns either landed 
property of their own, or rights of supe- 
riority over that of others. An internal 
elective government seems to have been 
required for the administration of a com- 
mon revenue, and of other business in- 
cident to their association.! They be- 



* Madox, Firma Burgi, p. 23. Hicks has given 
us a bond of fellowship among the thanes of Cam- 
bridgeshire, containing several curious particulars. 
A composition of eight pounds, exclusive, 1 con- 
ceive, of the usual weregild, was to be enforced 
from the slayer of any fellow. If a fellow (gilda) 
killed a man of 1200 shillings weregild, each of the 
society was to contribute half a marc ; for a ceorl, 
two orse (perhaps ten shillings) ; for a Welshman, 
one. If. however, this act was committed wan- 
tonly, the fellow had no right to call on the socie- 
ty for contribution. If one fellow killed another, 
he was to pay the legal weregild to his kindred, 
and also eight pounds to the society. Harsh words 
used by one fellow towards another, or even to- 
wards a stranger, incurred a fine. No one was to 
eat or drink in the company of one who had killed 
his brother fellow, unless in the presence of the 
king, bishop, or alderman. — Dissertatio Epistola^ 
ris, p. 21. 

We find in Wilkins's Anglo-Saxon laws, p. G5, a 
number of ordinances, sworn to by persons both of 
noble and ignoble rank (ge eorlisce ge ceorlisce), 
and confirmed by King Athelstan. These are in 
the nature of by-laws for the regulation of certain 
societies that had been formed for the preservation 
of public order. Their remedy was rather violent : 
to kill and seize the effects of all who should rob 
any member of the association. This property, 
after deducting the value of the thing stolen, was 
to be divided into two parts ; one given to the crim- 
inal's wife if not an accomplice, the other shared 
between the king and the society. 

In another fraternity among the clergy and laify 
of Exeter, every fellow was entitled to a contribu- 
tion in case of taking a journey, or if his house 
was burnt. Thus they resembled in some de- 
gree our friendly societies ; and display an inter- 
esting picture of manners, which has induced me 
to insert this note, though not greatly to the pres- 
ent purpose. See more of the Anglo-Saxon guilds 
in Turner's History, vol. ii., p. 102. Societies of 
the same kind, for purposes of religion, charity, or 
mutual assistance, rather than trade, may be found 
afterward.— Blomefield's Hist, of Norfolk, vol. iii., 
p. 494. 

1 See a grant fromTurstin, archbishop of York, 
in the reign of Henry I., to the burgesses of Bever- 
ley, that they may have their hanshtis (i. e. guild- 
hall) like those of York, et ibi sua statuta pertrac- 
tent ad honorem Dei, &c. — Rymer, t. i., p. 10. edit. 
1816. 



Part III.] 



ENGLISH CONSTITUTION. 



865 



came more numerous, and more peculiar- 
ly commercial after that era, as well from 
the increase of trade as through imita- 
tion of similar fraternities existing in 
many towns of France. The spirit of 
monopoly gave strength to those institu- 
tions, each class of traders forming itself 
into a body, in order to exclude compe- 
tition. Thus were established the com- 
panies in corporate towns, that of the 
Weavers in London being perhaps the 
earliest ;* and these were successively 
consolidated and sanctioned by charters 
from the crown. In towns not large 
enough to admit of distinct companies, 
one merchant guild comprehended the 
traders in general, or the chief of them ; 
and this, from the reign of Henry II. 
downward, became the subject of incor- 
porating charters. The management of 
their internal concerns, previously to any 
incorporation, fell naturally enough into a 
sort of oligarchy, which the tenour of the 
charter generally preserved. Though 
the immunities might be very extensive, 
the powers were more or less restrained 
to a small number. Except in a few 
places, the right of choosing magistrates 
was first given by King John ; and cer- 
tainly must rather be ascribed to his pov- 
erty than to any enlarged policy, of 
which he was utterly incapable. f 

From the middle of the twelfth centuiy 
Prosperity ^^ ^^^^ ^^ ^he thirteenth, the tra- 
ct" English ders of England became more and 
towns. more prosperous. The towns on 
the southern coast exported tin and oth- 
er metals in exchange for the wines of 
France; those on the eastern sent corn 
to Norway; the Cinque-ports bartered 
wool against the stuffs of Flanders. J 
Though bearing no comparison with the 
cities of Italy or the empire, they increas- 
ed sufficiently to acquire importance at 
home. That vigorous prerogative of the 
Norman monarchs, which kept down the 
feudal aristocracy, compensated for what- 
ever inferiority there might be in the 
population and defensible strength of the 
English towns, compared with those on 
the continent. They had to fear no pet- 
ty oppressors, no local hostility ; and if 
they could satisfy the rapacity of the 
crown, were secure from all other griev- 
j^ , ances. London, far above the 
rest, our ancient and noble capital, 
might, even in those early times, be just- 
ly termed a member of the political sys- 

* Madox, Firraa Burgi, p. 189. 

f Idem, passim. A few of an earlier date may 
be found m the new edition of Rymer. 

t Lyttleton's Hist, of Henry II., vol. ii., p. 170. 
Macuherson's Annals of Commerce, vol. i., p. 331. 



tem. This great city, so admirably situa- 
ted, was rich and populous long before 
the conquest. Bede, at the beginning of 
the eighth century, speaks of London as 
a great market, which traders frequented 
by land and sea.* It paid jC15,000 out 
of jC8-2,000, raised by Canute upon the 
kingdom.! If we believe Roger Hove- 
den, the citizens of London, on the death 
of Ethelred II., joined with part of the 
nobility in raising Edmund Ironside to 
the throne. I Harold I., according to bet- 
ter authority, the Saxon Chronicle, and 
William of Malmsbury, was elected by 
their concurrence.*^ Descending to later 
history, we find them active in the civil 
war of Stephen and Matilda. The fa- 
mous Bishop of Winchester tells the Lon- 
doners that they are almost accounted as 
noblemen on account of the greatness of 
their city ; into the community of which 
it appears that some barons had been re- 
ceived. || Indeed the citizens themselves, 
or at least the principal of them, were 
called barons. It was certainly by far 
the greatest city in England. There have 
been different estimates of its population, 
some of which are extravagant ; but I 
think it could hardly have contained less 
than thirty or forty thousand souls with- 
in its walls ; and the suburbs were very 
populous. If These numbers, the enjoy- 



* Macpherson, p. 245. + Id., p. 282. 

I Gives Lundinenses, et pars nobilium, qui eo 
tempore consistebant Lundoniae, Clitonem Ead- 
mundum unanimi consensu in regem levavere, p. 
249. 

ij Chron. Sa.xon., p. 154. Malmsbury, p. 76. 
He says the people of London were become al- 
most barbarians through their intercourse with the 
Danes ; propter frequentem convictum. 

II Londinenses, qui sunt quasi optimates pro 
magnitudine civitatis in Anglia. — Malmsb., p. 189. 
Thus too Matthew Pans ; cives Londinenses, quos 
propter civitatis dignitatem et civium antiquam 
libertatem Barones consuevimus appellare, p. 744 ; 
and in another place : totius civitatis cives, quoa 
barones vocant, p. 835. Spelman says that the 
magistrates of several other towns were called bar- 
ons. — Glossary, Barones de London. 

^ Drake, the historian of York, maintains that 
London was less populous about the time of the 
conquest than that city ; and quotes Hardynge, a 
writer of Henry V.'s age, to prove that the interi- 
or part of the former was not closely built. — Ebo- 
racum, p. 91. York however does not appear to 
have contained more than 10,000 inhabitants at 
the accession of the Conqueror ; and the very ex- 
aggerations as to the populou.'sneKs of London 
prove that it must have far exceeded that number. 
F'itz-Stephen, the contemporary biographer of 
Thomas Becket, tells us of 80,000 men capable 
of bearing arms within its precincts ; where how- 
ever his translator, Pegge, suspects a mistake of 
the MS. in the numerals. And this, with simi- 
lar hyperboles, so imposed on the judicious mind 
of Lord Lyttleton, that, finding in Peter of Blois 
the inhabitants of London reckoned at quadragin- 
ta millia, he has actually proposed to read quadrin 



366 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



ment of privileges, and the consciousness 
of strength, infused a free and even mu- 
tinous spirit into their conduct.* The 
Londoners were always on the barons' 
side in their contests with the crown. 
They bore a part in deposing William 
Longchamp, the chancellor and justici- 
ary of Richard I.f They were distin- 
guished in the great struggle for Magna 
Charta ; the privileges of their city are 
expressly confirmed in it ; and the Mayor 
of London Avas one of the twenty-five 
barons to whom the maintenance of its 
provisions was delegated. In the subse- 
quent reign, the citizens of London were 
regarded with much dislike and jealousy 
by the court, and sometimes suffered 
pretty severely by its hands, especially 
after the battle of Evesham. | 

Notwithstanding the influence of Lon- 
don in these seasons of disturbance, we 
do not perceive that it was distinguish- 
ed from the most insignificant town by 
greater participation in national councils. 
Rich, powerful, honourable, and high- 
spirited as its citizens had become, it was 
very long before they found a regular 
place in parliament. The prerogative of 
imposing tallages at pleasure, unsparing- 
ly exercised by Henry IIL even over 
London,^ left the crown no inducement 

genta.— Hist. Henry 11., vol. iv., ad finem. It is 
hardly necessary to observe, that tjie condition of 
agriculture and internal communication would not 
have allowed half that number to subsist. 

The subsidy-roll of 1.377, published in the 
ArchiEologia, vol. vii., would lead to a conclusion 
that all the inhabitants of London did not even 
then exceed 35,000. If this be true, they could 
not have amounted probably to so great a num- 
ber two or three centuries earlier. 

* This seditious, or at least refractory character 
of the Londoners, was displayed in the tumult 
headed by William Longbeard in the time of Rich- 
ard I., arid that under Constantino in 1222, the pa- 
triarchs of a long line of city demagogues.— Hove- 
den, p. 765. M. Paris, p. 154. 

t Hoveden's expressions are very precise, and 
show that the share taken by the citizens of Lon- 
don (probably the mayor and aldermen) in this 
measure was no tumultuary acclamation, but a de- 
liberate concurrence with the nobility. Comes 
Johannes, et fere omnes episcopi, et comites An- 
gliae eademdie intraverunt Londonias ; et in cras- 
tino praedictus Johannes frater regis, et archiepis- 
copus Rothomagensis, et omnes episcopi, et comi- 
tes, et barones, et cives Londonienses cum illis 
convenerunt in atrio ecclesiae S. Pauli. . . . Pla- 
cuit ergo Johanni fratri regis, et omnibus episco- 
pis, et comitibus, et baronibus regni, et civibus 
Londonianim, quod cancellarius ille deponeretur, 
et deposuerunt eum, &c., p. 701. 

f The reader may consult, for a more full ac- 
count of the English towns before the middle of 
the thirteenth century, Lyttleton's History of Hen- 
ry n., vol. ii., p. 174; and Macpherson's Annals 
of Commerce. 

^ Frequent proofs of this may be found in Ma- 
do.\-, Hist, of Exchequer, c. 17, as well as in Matt. 



to summon the inhabitants of cities and 
boroughs. As these indeed were daily 
growing more considerable, they were 
certain, in a monarchy so limited as that 
of England became in the thirteenth cen- 
tury, of attaining sooner or later this 
eminent privilege. Although, therefore, 
the object of Simon de Montfort in call- 
ing them to his parliament after the bat- 
tle of Lewes was merely to strengthen 
his own faction, which prevailed among 
the commonalty, yet their permanent 
admission into the legislature may be as- 
cribed to a more general cause. For 
otherwise it is not easy to see why the 
innovation of a usurper should have 
been drawn into precedent, though it 
might perhaps accelerate what the course 
of affairs was gradually preparing. 

It is well known that the earliest writs 
of summons to cities and bor- First sum- 
oughs of which we can prove the ["on'"? of 

P . ,, r ci- towns to 

existence, are those of Simon parliament, 
de Montfort, earl of Leicester, in49H. ni. 
bearing date the 12lh of December, 1-264, 
in the forty-ninth year of Henry III.* 
After a long controversy, almost all 
judicious inquirers seem to have acqui- 
esced in admitting this origin of popular 
representation.! The argument may be 
very concisely stated. We find from in- 
numerable records that the king imposed 
tallages upon his demesne towns at dis 
cretion.J No public instrument previous 



Paris, who laments it with indignation. Cives 
Londinenses, contra consuetudinem et libertatem 
civitatis, quasi servi ultimae conditionis, non sub 
nomine aut titulo liberi adjutorii, sed tallagii, quod 
multum eos angebat, regi, licet inviti et renitentes, 
numerare sunt coacti, j). 492. Heu ubi est Londi. 
nensis, toties empta, toties concessa, toties scripta, 
toties jurata libertas! &c. p. 657. The king some- 
times suspended their market, that is, I suppose, 
their right of loll, till his demands were paid. 

* These writs are not extant, havmg perhaps 
never been returned ; and consequently we cannot 
tell to what particular places they were addressed. 
It appears, however, that the assembly was intend- 
ed to be numerous, for the entry runs : scribitur 
civibus Ebor, civibus Lincoln, et csteris burgis 
Angliffi. It is singular that no mention is made of 
London, which must have had some special sum- 
mons. — Rymer, t. i., p. 803. Dugdale, Summon! 
tiones ad Parliamentum,p. 1. 

t It would ill repay any reader's diligence to 
wade through the vapid and diluted pages of Tyr- 
rell ; but whoever would know what can be best 
pleaded for a higher antiquity of our present par- 
liamentary constitution, may have recourse to Hody 
on Convocations, and Lord Lyttleton's Histor>' of 
Henry II., vol. li., p. 276, and vol. iv., p. 79—106. 
I do not conceive it possible to argue the question 
more ingeniously than has been done by the noble 
writer lastquoted. Whitelocke, in his commentary 
on the parliamentary writ, has treated it ver 
much at length, but with no critical discrimina- 
tion. 

X Madox, Hist, of Exchequer, c. 17. 



Part III.] 



ENGLISH CONSTITUTION. 



3G7 



to the forty-ninth of Henry III. names 
the citizens and burgesses as constitu- 
ent parts of parliament ; though prelates, 
barons, knights, and sometimes freehold- 
ers, are enumerated ;* while, since the 
undoubted admission of the commons, 
they are almost invariably mentioned. 
No liistorian speaks of representatives 
appearing for the people, or uses the 
word citizen or burgess in describing 
those present in parliament. Such con- 
vincing, though negative evidence is not 
to be invalidated by some general and 
ambiguous phrases, whether in writs and 
records or in historians. f Those monk- 
ish annalists are poor authorities upon 
any point where their language is to be 
delicately measured. But it is hardly 
possible, that writing circumstantially, as 
Roger de Hoveden and Matthew Paris 
sometimes did, concerning proceedings in 
parliament, they could have failed to men- 
tion the commons in unequivocal expres- 
sions, if any representatives from that 
order had actually formed a part of the 
assembly. 

Two authorities, however, which had 
Authorities ^eeu supposed to prove a 
in favour of greater antiquity than we have 
an earlier assigned to the representation 
of the commons, are deserving 
of particular consideration ; the cases of 
St Albans and Barnstaple. The burgess- 
St Albans ^^ ^^ ^^- ^l^aus complained to 
the council, in the eighth year 
of Edward II., that, although they held 
of the king in capite, and ought to at- 
tend his parliaments whenever they are 
summoned, by two of their number, in- 
stead of all other services, as had been 
their custom in all past times, which ser- 
vices the said burgesses and their prede- 
cessors had performed as well in the 
time of the late King Edward and his an- 
cestors, as in that of the present king 
until the parliament now sitting, the 
names of their deputies having been con- 
stantly enrolled in chancery, ^yet the 
sheriff of Hertfordshire, at the instigation 

* The only apparent exception to this is in the 
letter addressed to the pope by the parliament of 
1246, the salutation of which runs thus : Barones, 
proceres, et magnates, ac nobiles poTtuum maris hab- 
itatores, necnon et clerus et populus universus, sa- 
lutem.— Matt. Paris, p. 696. It is plain, I think, 
from these words, that some of the chief inhabi- 
tants of the Cinque-ports, at that time very flourish- 
ing towns, were present in this parliament. But 
whether they sat as representatives, or by a pecu- 
liar writ of summons is not so evident ; and the 
latter may be the more probable hypothesis of the 
two. 

t Thus Matthew Paris tells us, that in 1247, the 
whole kingdom, regni totius universitas, repaired 
to a parliament of Henry III., p. 307. 



of the abbot of St. Albans, had neglected 
to cause an election and return to be 
made ; and prayed remedy. To this pe- 
tition it Avas answered, " Let the rolls of 
chancery be examined, that it may ap- 
pear whether the said burgesses were ac- 
customed to come to parliament or not, 
in the time of the king's ancestors ; and 
let right be done to them, vocatis evocan- 
dis, si necesse fuerit." I do not trans- 
late these words, concerning the sense 
of which there has been some dispute, 
though not apparently very material to 
the principal subject.* 

This is, in my opinion, by far the most 
plausible testimony for the early repre- 
sentation of boroughs. The burgesses 
of St. Albans claim a prescriptive right 
from the usage of all past times, and 
more especially those of the late Edward 
and his ancestors. Could this be alle- 
ged, it has been said, of a privilege at the 
utmost of fifty years' standing, once 
granted by a usurper, in the days of the 
late king's father, and afterward discon- 
tinued till about twenty years before the 
date of their petition, according to those 
who refer the regular appearance of the 
commons in parliament to the twenty- 
third of Edward I. "? Brady, who obvi- 
ously felt the strength of this authority, 
has shown little of his usual ardour and 
acuteness in repelling it. It was observ- 
ed, however, by Madox, that the petition 
of St. Albans contains two very singular 
allegations : it asserts that the town was 
part of the king's demesne, Avhereas it 
had invariably belonged to the adjoining 
abbey ; and that its burgesses held by 
the tenure of attending parliament, in- 
stead of all other services, contrary to 
all analogy, and without parallel in the 
condition of any tenant in capite through- 
out the kingdom. " It is no wonder, 
therefore," says Hume, " that a petition 
which advances two falsehoods should 
contain one historical mistake, which in- 
deed amounts only to an inaccurate ex- 
pression." But it must be confessed, 
that Ave cannot so easily set aside the 
whole authority of this record. For 
whatever assurance the people of St. 
Albans might show in asserting what Avas 
untrue, the king's council must have 
been aware how recently the deputies 
of any towns had been admitted into 
parliament. If the lawful birth of the 
House of Commons were in 1295, as is 
maintained by Brady and his disciples, is 
it conceivable that, in 1315, the council 
Avould have received a petition, claiming 
the elective franchise by prescription, 

* Brady's Introd. to Hist, of England, p. 38 



3C8 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



and have referred to the rolls of chance- 
ry to inquire whether this had been used 
in the days of the king's progenitors 1 I 
confess that I see no answer which can 
easily be given to this objection by such 
as adopt the latest epoch of borongli rep- 
resentation, namely, the parliament of 
23 E. I. But they are by no means 
equally conclusive against the supposi- 
tion, that the communities of cities and 
towns, having been first introduced into 
the legislature during Leicester's usurpa- 
tion, in the forty-nhith year of Henry 
III., were summoned, not perhaps uni- 
formly, but without any long intermis- 
sion, to succeeding parliaments. There 
is a strong presumption, from the lan- 
guage of a contemporary historian, that 
they sat in the parliament of 1269, four 
years after that convened by Leicester.* 
it is more unequivocally stated by anoth- 
er annalist, that they were present in the 
first parliament of Edward L, held in 
I27I.t Nor does a similar inference 
want some degree of support from the 
preambles of the statute of Marlebridge 
in 51 H. III., of Westminster I., in the 
third, and of Glocester, in the sixth 
year of Edward I.J And the writs are 
extant which summon every city, bor- 
ough, and market town to send two dep- 
uties to a council in the eleventh year of 
his reign. I call this a council, for it 
undoubtedly was not a parliament. The 
sherifts were directed to summon per- 
sonally all who held more than twenty 
pounds a year of the crown, as well as 
four knights for each county invested 
with full powers to act for the commons 
thereof. The knights and burgesses 
thus chosen, as well as the clergy within 
the province of Canterbury, met at 
Northampton ; those within the province 
of York, at that city. And neither as- 

* Convocatis universis Angliae prelatis et mag- 
natibus, necnon cunctarum regni sui civitatum et 
burgorum potentioribus. — Wikes, in Gale, xv. 
Scriptores, t. ii., p. 88. I am indebted to Hody on 
Convocations for this reference, which seems to 
have escaped most of our constitutional writers. 

t Hoc anno .... convenerunt archiepiscopi, 
episcopi, comites et barones, abbates et priores, 
ct de quolibet comitatu quatuor milites, et de 
qualibet civitate quatuor.— Annales Waverleien- 
ses in Gale, t. ii., p. 227. I was led to this pas- 
sage by Atterbury. Rights of Convocations, p. 
310, where some other authorities, less unques- 
tionable, are adduced for the same jiurpose. Both 
this assembly, and that mentioned by Wikes in 
1269, were certainly parliaments, and acted as 
such, particularly the former, though summoned 
for purposes not strictly parliamentary. 

X The statute of Marlebridge is said to be made 
convocatis discretioribus, tam majoribus quam ini- 
noribus; that of Westminster primer, par son 
conseil, et par I'essentements des archievesques, 



sembly was opened by the king.* This 
anomalous convention was nevertheless 
one means of establishing the represent- 
ative system, and, to an inquirer free 
from technical prejudice, is httle less 
important than a regular parliament. 
Nor have we long to look even for this. 
In the same year, about eight months 
after the councils at Northampton and 
York, writs were issued summoning to a 
parliament at Shrewsbury two citizens 
from London, and as many from each of 
twenty other considerable towns. f It is 
a slight cavil to object that these were 
not directed as usual to the sheriff of 
each county, but to the magistrates of 
each place. Though a very imperfect, 
this was a regular and unequivocal rep- 
resentation of the commons in parlia- 
ment. But their attendance seems to 
have intermitted from this time to the 
twenty-third year of Edward's reign. 

Those to whom the petition of St. Al- 
bans is not satisfactory, will uamstapie. 
hardly yield their conviction to 
that of Barnstaple. This town set forth 
in the eighteenth of Edward III., that, 
among other franchises granted to them 
by a charter of Athelstan, they had ever 
since exercised the right of sending two 
burgesses to parliament. The said char- 
ter indeed was unfortunately mislaid, 
and the prayer of their petition was to 
obtain one of the like import in its stead. 
Barnstaple, it must be observed, was a 
town belonging to Lord Audley, and had 
actually returned members ever since 
the twenty-third of Edward I. Upon an 
inquisition directed by the king to be 
made into the truth of these allegations, 
it was found that " the burgesses of the 
said town were wont to send two bur- 
gesses to parliament for the commonal- 

evesques, abbes, priors, countes, barons, et tout le 
comminalty de la terre illonques snmmones. The 
statute of Glocester runs, appelles les plus dis- 
cretes de son royaume, auxibien des grandes come 
des meinders. These preambles seem to have 
satisfied Mr. Prynne that the commons were then 
represented, though the writs are wanting ; and 
certainly no one could be less disposed to exag- 
gerate their antiquity. — 2d Register, p. 30. 

* Brady's Hist, of England, vol. ii., Appendix 
Carte, vol. ii., p. 257. 

t This is commonly denominated the parlia- 
ment of Acton Burnell; the clergy and commons 
having sat in that town, while the barons passed 
judgment upon David, prince of Wales, at 
Shrewsbury. The towns which were honoured 
with the privilege of representation, and may con- 
sequently be supposed to have been at that time 
the most considerable in England, were York, 
Carlisle, Scarborough, Nottingham, Grimsby, Lin- 
coln, Northampton, Lynn, Yarmouth, Colchester, 
Norwich, Chester, Shrewsbury, Worcester, Here- 
ford, Bristol, Canterbury, Winchester, and Exe- 
ter.— Rymer, t. ii., p. 247. 



Part III.] 



ENGLISH CONSTITUTION. 



369 



♦ Willis, Notitia Parliamentaria, vol. ii., p. 312. 
Lyttieton's Hist, of Hen. II., vol. iv., p. 89. 
t 5 Ric. II., Stat. 2, c. iv. 
Aa 



ty of the borough ;" but nothing appeared 
as to the pretended charter of Athelstan, 
or the liberties which it was alleged to 
contain. The burgesses, dissatisfied with 
this inquest, prevailed ttiat another should 
be taken, which certainly answered bet- 
ter their wishes. The second jury found 
that Barnstaple was a free borough from 
time immemorial ; that the burgesses had 
enjoyed under a charter of Athelstan, 
which had been casually lost, certain 
franchises by them enumerated, and par- 
ticularly that tliey should send two bur- 
gesses to parliament ; and that it would 
not be to the king's prejudice, if he 
should grant them a fresh charter in 
terms equally ample with that of his 
predecessor Athelstan. But the follow- 
ing year we have another writ and an- 
other inquest, the former reciting that 
the second return had been unduly and 
fraudulently made ; and the latter ex- 
pressly contradicting the previous in- 
quest in many points, and especially find- 
ing no proof of Athelstan's supposed 
charter. Comparing the various parts 
of this business, we shall probably be in- 
duced to agree with Willis, that it was 
but an attempt of the inhabitants of 
Barnstaple to withdraw themselves from 
the jurisdiction of their lord. For the 
right of returning burgesses, though it is 
the main point of our inquiries, was by 
no means the most prominent part of 
their petition, which rather went to es- 
tablish some civil privileges of devising 
their tenements and electing their own 
mayor. The first and fairest return finds 
only that they were accustomed to send 
members to parliament, which a usage 
of fifty years (from 23 E. I. to 18 E. III.) 
was fully sufficient to establish, without 
searching into more remote antiquity.* 

It has, however, probably occurred to 
the reader of these two cases, St. Albans 
and Barnstaple, that t"he representation 
of the commons in parliament was not 
treated as a novelty, even in times little 
posterior to those in which we have been 
supposing it to have originated. In this 
consists, I think, the sole strength of the 
opposite argument. An act in the fifth 
year of Richard II. declares, that if any 
sheriff shall leave out of his returns any 
cities or boroughs which be bound, and 
of old time were wont to come to the 
parliament, he shall be punished as was 
accustomed to be done in the like case 
in time past.f In the memorable asser- 
tion of legislative right by the commons 



in the second of Heniy V., which will be 
quoted hereafter, they affirm that " the 
commune of the land is, atid ever has 
been, a member of parliament."* And 
the consenting sufi'rage of our older law- 
books must be placed in the same scale. 
The first gainsayers, I think, were Cam- 
den and Sir Henry Spelman, who, upon 
probing the antiquities of our constitu- 
tion somewhat more exactly than their 
predecessors, declared that they could 
find no signs of the commons in parlia- 
ment till the forty-ninth of Henry III. 
Prynne, some years afterward, with 
much vigour and learning, maintained 
the same argument, and Brady completed 
the victory. But the current doctrine of 
Westminster Hall, and still more of the 
two chambers of parliament, was cer- 
tainly much against these antiquaries; 
and it passed at one time for a surrender 
of popular principles, and almost a breach 
of privilege, to dispute the hneal descent 
of the house of commons from the wit- 
tenagemot.f 

The true ground of these pretensions 
to antiquity was a very well founded per- 
suasion, that no other argument would 
be so conclusive to ordinary minds, or cut 
short so effectually all encroachments of 
the prerogative. The populace of every 
country, but none so much as the Eng- 
lish, easily grasp the notion of right, 
meaning thereby something positive and 
definite ; while the maxims of expediency 
or theoretical reasoning pass slightly 



* Rot. Pari., vol. iv., p. 22. 

t Though such an argument would not be con- 
clusive, it might afford some ground for hesitation 
if the royal burghs of Scotland were actually rep- 
resented in their parliament more than half a cen- 
tury before the date assigned to the first represen- 
tation of English towns. Lord Hailes concludes 
from a passage in Fordun, " that, as early as 1211, 
burgesses gave suit and presence in the great 
council of the king's vassals ; though the contrary 
has been asserted with much confidence by various 
authors." — Annals of Scotland, vol. i., p. 139. For- 
dun's words, however, so far from importing that 
they formed a member of the legislature, which 
perhaps Lord Hailes did not mean by the quaint 
expression " gave suit and presence," do not ap- 
pear to me conclusive to prove that they were ac- 
tually present. Hoc anno Rex Scotise Willelmus 
magnum tenuit consilium. Ubi, petito ab opti- 
maiibus auxilio, promiserunt se daturos decern 
inille marcas ; proeter burgenses regni, qui sex mil- 
lia promiserunt. Those who know the brief and 
incorrect style of chronicles will not think it un- 
likely that the offer of 6000 marks by the burgesses 
was not made in parliament, but in consequence 
of separate requisitions from the crown. Pink- 
erton is of opinion, that the magistrates of royal 
burghs might upon this, and perhaps other occa- 
sions, have attended at the bar of parliament with 
their offers of money. But the deputies of towns 
do not appear as a part of parliament till 1326.— 
Hist, of Scotland, vol. i., p. 352, 371 



370 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



over their minds. Happy indeed for 
England that it is so ! But we have here 
to do with the fact alone. And it may 
be observed, that several pious frauds 
were practised, to exalt the antiquity of 
our constitutional liberties. These be- 
gan, perhaps, very early, when the ima- 
ginary laws of Edward the Confessor 
were so earnestly demanded. They 
were carried farther under Edward I. and 
his successors, when the fable of privi- 
leges granted by the Conqueror to the 
men of Kent was devised ; when Andrew 
Horn filled his Mirror of Justices with 
fictitious tales of Alfred ; and, above all, 
when the " method of holding parha- 
ments in the time of Ethelred" was fab- 
ricated, about the end of Richard H.'s 
reign ; an imposture which was not too 
gross to deceive Sir Edward Coke. 

There is no great difficulty in answer- 
Causes of i"g ^^^ question, why the dep- 
summoning uties of boroughs were finally 
eputies and permanently ingrafted upon 
^°^J°" parliament by Edward I.* The 
government was becoming con- 
stantly more attentive to the wealth that 
commerce brought into the kingdom, and 
the towns were becoming moie flourish- 
ing and more independent. But, chiefly, 
there was a much stronger spirit of gen- 
eral liberty, and a greater discontent at 
violent acts of prerogative, from the era 
of Magna Charta ; after which authentic 
recognition of free principles, many acts, 
which had seemed before but the regular 
exercise of authority, were looked upon 
as infringements of the subject's right. 
Among these the custom of setting tal- 
lages at discretion would naturally ap- 
pear the most intolerable ; and men were 
unwilling to remember that the burgesses 
who paid them were indebted for the 
rest of their possessions to the bounty of 
the crown. In Edward I.'s reign, even 
before the great act of confirmation of 
the charters had rendered arbitrary impo- 
sitions absolutely unconstitutional, they 
might perhaps excite louder murnmrs 

* These expressions cannot appear too strong. 
But it is very remarkable, that to the parliament 
of 18 Edward III., the writs appear to have sum- 
moned none of the towns, but only the counties. — 
Willis, Notit. Parliament., vol. i., Preface, p. 13. 
Prynne's Register, 3d part, p. 144. Yet the citi- 
zens and burgesses are once, but only once, named 
as present in the parliamentary roll; and there is, 
in general, a chasm in place of their names, where 
the different ranks present are enumerated. — Rot. 
Pari., vol. ii., p. 146. A subsidy was granted at 
this parliament ; so that, if the citizens and bur- 
gesses were really not summoned, it is by far the 
most violent stretch of power during the reign of 
Edward III. But I know of no collateral evidence 
illustrate or disprove it. 



than a discreet administration would 
risk. Though the necessities of the king, 
therefore, and his imperious temper, often 
led him to this course,* it was a more 
prudent counsel to try the willingness 
of his people before he forced their re 
luctance. And the success of his in- 
novation rendered it worth repetition. 
Whether it were from the complacency 
of the commons at being thus admitted • 
among the peers of the realm, or from a 
persuasion that the king would take their 
money if they refused it, or from inabil- 
ity to withstand the plausible reasons of 
his ministers, or from the private influ- 
ence to which the leaders of every pop- 
ular assembly have been accessible, much 
more was granted in subsidies after the 
representation of the towns commenced, 
than had ever been extorted in tallages. 
To grant money was therefore the 
main object of their meeting; and if the 
exigencies of the administration could 
have been relieved without subsidies, the 
citizens and burgesses might still have 
sat at home, and obeyed the laws which 
a council of prelates and barons enacted 
for their government. But it is a difficult 
question, whether the king and the peerg 
designed to make room for them, as it 
were, in legislation ; and whether the 
power of the purse drew after it immedi 
ately, or only by degrees, those indispen- 
sable rights of consenting to laws which 
they now possess. There are no suffi- 
cient means of solving this doubt during 
the reign of Edward I. The writ in 22 E. 
I. directs two knights to be chosen cunj 
plena potestate pro se et tota communi- 
tate comitatus praedicti, ad consulendun* 
et consentiendum pro se et communitatft 
ilia, his quae comites,barones, et procere.i 
praedicti concorditer ordinaverint in praj 
missis. That of the next year runs, ad 
faciendum tunc quod de communi con 
silio ordinabitur ui prsmissis. The same 
words are inserted in the writ of 26 E. I. 
In that of 28 E. I. the knights are directed 
to be sent cum plena potestate audiendi 
et faciendi quae ibidem ordinari conti- 
gerint pro communi commodo. Several 
others of the same reign have the words 
ad faciendum. The difficulty is to pro- 
nounce whether this term is to be inter- 
preted in the sense of performing or of 
enacting ; whether the representatives of 

* Tallages were imposed without consent of 
parliament in 17 E. I., Wykes. p. 117; and in 32 
E. I., Brady's Hist, of Eng., vol. ii. In the latter 
instance the king also gave leave to the lay and 
spiritual nobility to set a tallage on their own ten- 
ants. This was subsequent to the Gonfirmati- 
1 Chartarum, and unquestionably illegal. 



Fart 111.] 



EWGLISH CONSTITUTION, 



371 



the commons were merely to learn from 
the lords what was to be done, or to bear 
their part in advising upon it. The ear- 
liest writ, that of 22 E. I., certainly im- 
phes the latter ; and I do not know that 
any of the rest are conclusive to the con- 
trary. In the reign of Edward II., the 
words ad consentiendum alone, or ad 
faciendum et consentiendum, begin ; and 
from that of Edward III. this form has 
been constantly used.* It must still 
however be highly questionable, whether 
the commons, who had so recently taken 
their place in parliament, gave any thing 
more than a constructive assent to the 
laws enacted during this reign. They 
are not even named in the preamble of 
any statute till the last year of Edward 
I. Upon more tiian one occasion, the 
sheriffs were directed to return the same 
members who had sat in the last parlia- 
ment, unless prevented by death or in- 
firmity.f 

It has been a very prevailing opinion. 
At what that parliament was not divided 
time pariia- jj^^q j^yQ houses at the first ad- 

meiit was . . /- i t/- 

divided into mission of the commons. 11 
two houses, by this is only meant that the 
commons did not occupy a separate cham- 
ber till some time in the reign of Edward 
III., the proposition, true or false, will 
be of little importance. They may have 
sat at the bottom of Westminster Hall, 
while the lords occupied the upper end. 
But that they were ever intermingled in 
voting appears inconsistent with likeli- 
hood and authority. The usual object 
of calling a parhament was to impose 
taxes ; and these, for many years after 
the introduction of the commons, were 
laid in different proportions upon the 
three estates of the realm. Thus in the 
23 E. I., the earls, barons, and knights 
gave the king an eleventh, the clergy a 
tenth ; while he obtained a seventh from 
the citizens and burgesses ; in the twenty- 
fourth of the same king, the two former 
of these orders gave a twelfth, the last 
an eighth ; in the thirty-third year, a 
thirtieth was the grant of the barons and 
knights, and of the clergy, a twentieth of 
the cities and towns : in the first of Ed- 
ward II., the counties paid a twentieth, 
the towns a fifteenth; in the sixth of 
Edward III., the rates were a fifteenth 



• Prynne's 2d Register. It may be remarked, 
that writs of summons to great councils never ran 
ad faciendum, but ad ti-actandum, consulendum et 
consentiendum ; from which some would infer that 
faciendum had the sense of enacting; since stat- 
utes could not be passed in such assemblies. — Id., 
p. 92. 

t 28 E. I., in Prynne's 4th Register, p. 12; 9 E. 
II. (a great council), p. 48. 
A a2 



and a tenth.* These distinct grants im- 
ply distinct grantors ; for it is not to be 
imagined that the commons intermeddled 
in those affecting the lords, or the lords 
in those of the commons. In fact, hoAV- 
ever, there is abundant proof of their 
separate existence long before the seven- 
teenth of Edward III., which is the epoch 
assigned by Carte,f or even the sixth of 
that king, which has been chosen by 
some other writers. Thus the commons 
sat at Acton Burnell in the eleventh of 
Edward I., while the upper house was at 
Shrewsbury. In the eighth of Edward 
II., " the commons of England complain 
to the king and his council," &c.% These 
must surely have been the commons as- 
sembled in parliament, for who else could 
thus have entitled themselves ■? In the 
nineteenth of the same king, we find 
several petitions, evidently proceeding 
from the body of the commons in parlia- 
ment, and complaining of public griev- 
ances.^ The roll of 1 E. III., though 
mutilated, is conclusive to show that 
separate petitions were then presented 
by the commons, according to the regu- 
lar usage of subsequent times. || And, 
indeed, the preamble of 1 E. III., stat. 2, 
is apparently capable of no other infer- 
ence. 

As the knights of shires correspond to 
the lower nobility of other feudal coun- 
tries, we have less cause to be surprised 
that they belonged originally to the same 
branch of parliament as the barons, than 
at their subsequent intermixture with 
men so inferior in station as the citizens 
and burgesses. It is by no means easy 
to define the point of time when this dis- 
tribution was settled ; but I think it may 
be inferred from the rolls of parliament, 
that the houses were divided, as they are 
at present, in the eighth, ninth, and nine- 
teenth years of Edward II. T[ This ap- 
pears, however, beyond doubt, in the 
first of Edward III.** Yet in the sixth 
of the same prince, though the knights 
and burgesses are expressl}'' mentioned 
to have consulted together, the former 
taxed themselves in a smaller rate of 
subsidy than the latter, ft 

The proper business of the house of 
commons was to petition for redress of 
grievances, as much as to provide for 
the necessities of the crown. In the 

* Brady's Hist, of England, vol. ii., p. 40. Par- 
liamentary History, vol. i., p. 206. Rot. Parlia- 
ment, t. ii., p. 66. 

t Carte, vol. ii., p. 451. Parliamentary History, 
vol. i., p. 234. 

$ Rot. Pari., V. i., p. 289. () Id., p. 430. 

II Id., vol. ii., p. 7. IT Id., p. 289, 351, 430, 

** Id., p. 5, tt Id., p. 86. 



372 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



prudent fiction of English law, no wrong 
is supposed to proceed from the source 
of right. The throne is fixed upon a 
pinnacle, which perpetual beams of truth 
and justice irradiate, though corruption 
and partiality may occupy the middle 
region, and cast their chill shade upon 
all below. In his high court of parlia- 
ment, a king of England was to learn 
where injustice had been unpunished, 
and where right had been delayed. The 
common courts of law, if they were suf- 
ficiently honest, were not sufficiently 
strong to redress the subject's injuries, 
where the officers of the crown or the 
nobles interfered. To parliament he 
looked as the great remedial court for 
relief of private as well as public griev- 
ances. For this cause it was ordained 
in the fifth of Edward II., that the king 
should hold a parliament once, or, if 
necessary, twice every j^ear ; " that the 
pleas which have been thus delayed, and 
those where the justices have diff"ered, 
may be brought to a close."* And a 
short act of 4 Edward III., Avhich was 
not very strictly regarded, provides that 
a parliament shall be held " every year, 
or oftener, if need be."f By what per- 
sons, and under what limitations, this 
jurisdiction in parliament was exercised, 
will come under our future consideration. 
The efficacy of a king's personal char- 
acter, in so imperfect a state of govern- 
ment, was never more strongly exempli- 
fied than in the two first Edwards. The 
father, a little before his death, had hum- 
bled his boldest opponents among the no- 
bility ; and as for the commons, so far 
from claiming a right of remonstrating, 
we have seen cause to doubt whether they 
Edward u. Were accouutcd effectual mem- 
Petitionsof j^gj.^ ^f jj^g legislature for any 

parliament u ^ P *■ t> .. • 

during his purposes but taxation. But m 
reign. the very second year of the 
son's reign, they granted the twenty-fifth 
penny of their goods, " upon this condi- 
tion, that the king should take advice 
and grant redress upon certain articles 
wherein they are aggrieved." These 
were answered at the ensuing parlia- 
ment, and are entered, with the king's 
respective promises of redress, upon the 
roll. It will be worth while to extract 
part of this record, that we may see 



* Rot. Pari, vol. i , p. 285. 

t 4 E. III., c. 14. Annual sessions of parlia- 
ment seem fully to satisfy the words, and still 
more the spirit of this act, and of 36 E. III., c. 10 ; 
which, however, are repealed by implication from 
the provisions of 6 W. ill., c. 2. But it was very 
rare under the Plantagenet dynasty for a parlia- 
ment to continue more than a year. . 



what were the complaints of the com- 
mons of England, and their notions of 
right, in 1309. I have chosen, on this as 
on other occasions, to translate very lit- 
erally, at the expense of some stiff"ness, 
and perhaps obscurity in language. 

" The good people of the kingdom who 
are come hither to parliament, pray our 
lord the king that he will, if it please 
him, have regard to his poor subjects, 
who are much aggrieved by reason that 
they are not governed as they should be ; 
especially as to the articles of the Great 
Charter; and for this, if it please him, 
they pray remedy. Besides which they 
pray their lord the king to hear what has 
long aggrieved his people, and still does 
so from day to day, on the part of those 
who call themselves his officers, and to 
amend it, if he pleases." The articles, 
eleven in number, are to the following 
purport: — 1. That the king's purveyors 
seize great quantities of victuals without 
payment ; 2. That new customs are set 
on wine, cloth, and other imports ; 3. That 
the current coin is not so good as for- 
merly ;* 4, 5. That the steward and mar- 
shal enlarge their jurisdiction beyond 
measure to the oppression of the people ; 

6. That the commons find none to re- 
ceive petitions addressed to the council ; 

7. That the collectors of the king's dues 
(pernours des prises) in towns and at fairs, 
take more than is lawful; 8. That men 
are delayed in their civil suits by writs of 
protection ; 9. That felons escape pun- 
ishment by procuring charters of par- 
don ; 10. That the constables of the 
king's castles take cognizance of com- 
mon pleas; 11. That the king's escheat- 
ors oust men of lands held by good title, 
under pretence of an inquest of office. f 

These articles display in a short com 
pass the nature of those grievances 
which existed under almost all the 
princes of the Plantagenet dynasty, and 
are spread over the rolls of parliament 
for more than a century after this time. 
Edward gave the amplest assurances of 
putting an end to them all; except in 
one instance, the augmented customs on 
imports, to which he answered rather 
evasively, that he would take them off 
till he should perceive whether himself 
and his people derived advantage from 
so doing, and act thereupon as he should 



* This article is so expressed as to make it ap- 
pear that the grievance was the high price of com- 
modities. But as this was the natural effect of a 
degraded currency, and the whole tenour of these 
articles relates to abuses of government, I think it 
must have meant what I have said in the text. 

t Prynne's 2d Register, p. 68. 



Part III.] 



ENGLISH CONSTITUTION. 



373 



be advised. Accordingly, the next year, 
he issued writs to collect these new 
customs again. But the Lords Ordainers 
superseded the writs, having entirely ab- 
rogated all illegal impositions.* It does 
not appear, however, that, regard had to 
the times, there was any thing very ty- 
rannical in Edward's government. He 
set tallages sometimes, like his father, 
on his demesne towns without assent of 
parliament.! Ii^ the nineteenth year 
of his reign, the commons show, that 
" whereas we and our ancestors have 
given many tallages to the king's ances- 
tors to obtain the charter of the forest, 
which charter we have had confirmed 
by the present king, paying him large- 
ly on our part ; yet the king's officers of 
the forest seize on lands, and destroy 
ditches, and oppress the people, for which 
they pray remedy, for the sake of God 
and his father's soul." They complain at 
the same time of arbitrary imprisonment, 
against the law of the land. J To both 
these petitions the king returned a prom- 
ise of redress ; and they complete the 
catalogue of customary grievances in this 
period of our constitution. 

During the reign of Edw^ard II. the 
rolls of parliament are imperfect, and 
we have not much assistance from other 
sources. The assent of the commons, 
which frequently is not specified in the 
statutes of this age, appears in two re- 
markable and revolutionary proceedings, 
the appointment of the Lords Ordainers 
in 1312,^ and that of Prince Edward as 
guardian of the realm in the rebellion 
which ended in the king's dethronement. 
In the former case, it indicates that the 
aristocratic party then combined against 
the crown were desirous of conciliating 
popularity. An historian relates, that 
some of the commons were consulted 
upon the ordinances to be made for the 
reformation of government. || In the lat- 
ter case, the deposition of Edward II., I 
am satisfied, that the commons assent 
was pretended in order to give more 
speciousness to the transaction.*^ But as 

* Prynne's 2d Register, p. 75. 

I Madox, Firina Burgi, p. 6. Rot. Pari., vol. i., 
p. 449. 

t Rot. Pari., vol. i., p. 430. ^ Id., p. 281. 

II Walsinghain, p. 97. 

^ A record, which may be read in Brady's His- 
tory of England, vol. ii., Append., p. 66, and in 
Rymer, t. iv., p. 1237, relative to the proceedings 
on Edward II. 's flight into Wales and subsequent 
detention, recites " that the king, having leit his 
kingdom without government, and gone away with 
notorious enemies of the queen, prince, and realm ; 
divers prelates, earls, barons, and knights then be- 
ing at Bristol, m the presence of the said queen 
tnd duke (Prince Edward, duke of Cornwall), by 



this proceeding, however violent, bears 
evident marks of having been conducted 
by persons conversant in law, the men- 
lion of the commons may be deemed a 
testimony to their constitutional right 
of participation Avith the peers in making 
provision for a temporary defect of what- 
ever nature in the executive government. 
During the long and prosperous reign 
of Edward III., the efforts of Edward ni. 
parliament in behalf of their The com- 

' , 11-1 mons estab- 

country were rewarded with ush several 
success, in establishing upon a rights. 
firm footing three essential principles of 
our government ; the illegality of raising 
money without consent ; the necessity 
that the two houses should concur for 
any alterations in the law ; and, lastly, 
the right of the commons to inquire 
into public abuses, and to impeach public 
counsellors. By exhibiting proofs of 
each of these from parliamentary rec- 
ords, I shall be able to substantiate the 
progressive improvement of our free 
constitution, which was principally con- 
solidated during the reigns of Edward III. 
and his two next successors. Brady in- 
deed. Carte, and the authors of the Par- 
Hamentary History, have trod already 
over this ground ; but none of the three 
can be considered as familiar to the gen- 
erality of readers, and I may at least 
take credit for a sincerer love of liberty 
than any of their writings display. 

In the sixth year of Edward III. a par- 
liament was called to provide for the 
emergency of an Irish rebell- Remonstran- 
ion ; wherein, " because the "* agamst 
king could not send troops and money with- 
money to Ireland without the out consent, 
aid of his people, the prelates, earls, 
barons, and other great men, and the 
knights of shires, and all the commons, 



the assent of the whole commonalty of the realm there 
being, unanimously elected the said duke to be 
guardian of the said kingdom ; so that the said 
duke and guardian should rule and govern the 
said realm, in the name and by the authority of the 
king his father, he being thus absent." But the 
king being taken and brought back mto England, 
the power thus delegated to the guardian ceased 
of course ; whereupon the Bishop of Hereford was 
sent to press the king to permit that the great seal, 
which he had with him, the prince having only 
used his private seal, should be used in all things 
that required it. Accordingly the king sent the 
great seal to the queen and prince. The bishop is 
said to have been thus commissioned to fetch the 
seal by the prince and queen, and by the said pre- 
lates and peers, with the assent of the said common- 
ally then being at Hereford. It is plain that these 
were mere words of course ; for no parliament 
had been convoked, and no proper representatives 
could have been either at Bristol or Hereford. 
However, this is a very curious record, inasmuch 
as it proves the importance attached to the fcrms 
of the constitution at this period 



374 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Vlil. 



of their free-will, for the said purpose, 
and also in order that the king might 
live of his own, and not vex his people 
by excessive prises, nor in other man- 
ner, grant to him the fifteenth penny, to 
levy of the commons,* and the tenth 
from the cities, towns, and royal de- 
mesnes. And the king, at the request 
of the same, in ease of his people, grants 
that the conunissions lately made to 
certain persons assigned to set tallages 
on cities, towns, and demesnes through- 
out England, shall be immediately repeal- 
ed ; and that in time to come he will 
not set such tallage, except as it has 
been done in the time of his ancestors, 
and as he may reasonably do."t 

These concluding words are of danger- 
ous implication, and certainly it was not 
the intention of Edward, inferior to none 
of his predecessors in the love of power, 
to divest himself of that eminent prerog- 
ative, which, however illegally since the 
Confirmatio Chartarum, had' been exer- 
cised by them all. But the parliament 
took no notice of this reservation, and 
continued with unshaken perseverance to 
insist on this incontestable and funda- 
mental right, which he was prone enough 
to violate. 

In the thirteenth year of this reign, the 
lords gave their answer to commission- 
ers sent to open the parliament, and to 
treat with them on the king's part, in a 
sealed roll. This contained a grant of 
the tenth sheaf, fleece, and lamb. But, 
before they gave it, they took care to 
have letters patent showed them, by 
which the commissioners had power " to 
grant some graces to the great and 
small of the kingdom." — " And the said 
lords," the roll proceeds to say, " will, 
that the imposition (maletoste) which 
now again has been levied upon wool be 
entirely abolished, that the old customa- 
ry duty be kept, and that they may have 
it by charter, and by enrolment in par- 
liament, that such custom be never 
more levied, and that this grant now 
made to the king, or any other made in 
time past, shall not turn hereafter to their 
charge nor be drawn into precedent." 
The commons, who gave their answers 
in a separate roll, declared that they 
could grant no subsidy without consult- 
ing their constituents ; and therefore 
begged that another parliament might be 
summoned, and in the meantime they 
would endeavour, by using persuasion 

♦ " La commonalt^e" seems in this place to 
mean the tenants of land, or commons of the 
counties, in contradistinclion to citizens and bur- 
gesses, t Rot. Parl.,v. ii., p. 66. 



with the people of their respective coun 
ties, to procure the grant of a reasonable 
aid in the next parliament.* They de- 
manded also that the imposition on wool 
and lead should be taken as it used to be 
in former times, " inasmuch as it is en- 
hanced without assent of the commons, 
or of the lords, as we understand ; and 
if it be otherwise demanded, that any 
one of the commons may refuse it (le 
puisse arester), without being troubled on 
that account (saunz estre chalange").f 

Wool, however, the staple export of 
that age, was too easy and tempting a 
prey to be relinquished by a prince en- 
gaged in an empoverishing war. Seven 
years afterward, in 20 E. III., we find the 
commons praying that the great subsidy 
of forty shillings upon the sack of wool 
be taken off; and the old custom paid as 
heretofore was assented to and granted. 
The government spoke this time in a 
more authoritative tone. "As to this 
point (the answer runs), the prelates and 
others, seeing in what need the king stood 
of an aid before his passage beyond sea, 
to recover his rights, and defend his king- 
dom of England, consented, with the 
concurrence of the merchants, that he 
should have, in aid of his said war, and in 
defence of his said kingdom, forty shil- 
lings of subsidy for each sack of wool 
that should be exported beyond sea for 
two years to come. And upon this grant 
divers merchants have made many ad- 
vances to our lord the king, in aid of his 
war ; for which cause this subsidy can- 
not he repealed without assent of the 
king and his lords. "| 

It is probable that Edward's counsel- 
lors wished to establish a distinction, long 
afterward revived by those of James I., 
between customs levied on merchandise 
at the ports and internal taxes. The 
statute entitled Confirmatio Chartarum 
had manifestly taken away the preroga- 
tive of imposing the latter, which indeed 
had never extended beyond the tenants 
of the royal demesne. But its language 
was not quite so explicit as to the former, 
although no reasonable doubt could be 
entertained that the intention of the legis- 
lature was to abrogate every species of 
imposition unauthorized by parliament. 
The thirtieth section of Magna Charta 
had provided that foreign merchants 
should be free from all tributes, except 
the ancient customs ; and it was strange 
to suppose that natives were excluded 
from the benefit of that enactment. Yet 



♦ Rot. Pari, vol. ii., p. 104. 
+ Id. ihid. 



t Id., p. 16L 



Part III.] 



ENGLISH CONSTITUTION. 



375 



owing to the ambiguous and elliptical 
style so frequent in our older laws, this 
was open to dispute, and could perhaps 
only be explained by usage. Edward I., 
in despite of both these statutes, had 
set a duty of threepence in the pound 
upon goods imported by merchant stran- 
gers. This imposition was noticed as a 
grievance in the third year of his succes- 
sor, and repealed by the lords ordainers. 
It was revived however by Edward III., 
and continued to be levied ever after- 
ward.* 

Edward was led by the necessities of 
his unjust and expensive war into anoth- 
er arbitrary encroachment, of which we 
find as many complaints as of his pecuni- 
ary extortions. The commons pray, in 
the same parliament of 20 E. III., that 
commissions should not issue for the fu- 
ture out of chancery, to charge the peo- 
ple with providing men-at-arms, hobelers 
(or light cavalry), archers, victuals, or in 
any other manner, without consent of 
parliament. It is replied to this petition, 
that " it is notorious how in many parlia- 
ments the lords and commons had prom- 
ised to aid the king in his quarrel with 
their bodies and goods as far as was in 
their power ; wherefore the said lords, 
seeing the necessity in which the king 
stood of having aid of men-at-arms, hobe- 
lers, and archers, before his passage to 
recover his rights beyond sea, and to de- 
fend his realm of England, ordained, that 
such as had five pounds a year or more 
in land on this side of Trent, should fur- 
nish men-at-arms, hobelers, and archers, 
according to the proportion of the land 
they held, to attend the king at his cost ; 
and some who would neither go them- 
selves nor find others in their stead, were 
willing to give the king wherewithal 
he might provide himself with some in 
their place. And thus the thing has been 
done, and no otherwise. And the king 
wills, that henceforth what has been thus 
done in this necessity be not drawn into 
consequence or example."! 

The commons were not abashed by 
these arbitrary pretensions ; they knew 
that by incessant remonstrances they 
should gain at least one essential point, 

* Case of impositions in Howell's State Trials, 
vol. ii , p. 371 — 519 ; particularly the argument of 
Mr. Hakewill. Hale's Treatise on the Customs, 
in Hargrave's Tracts, vol. i. 

Edward III. imposed another duty on cloth ex- 
ported, on the pretence that as the wool must have 
paid a tax, he had a right to place the wrought and 
unwrought article on an equality. The commons 
remonstrated against this ; but it was not repealed. 
This took place about 22 E. III.— Hale's Treatise, 
p. 175. t Rot. Pari., p. ICO. 



that of preventing the crown from claim- 
ing these usurpations as uncontested pre- 
rogatives. The roll ot parliament in the 
next two years, the 21st and 22d of Ed- 
ward III., is full of the same complaints 
on one side, and the same allegations of 
necessity on the other.* In the latter year 
the commons grant a subsi-dy, on condi- 
tion that no illegal levying of money 
should take place, with several other 
remedial provisions ; " and that these 
conditions should be entered on the roll 
of parliament, as a matter of record, by 
which they may have remedy, if any 
thing should be attempted to the con- 
trary in time to come." Ftom this year 
the complaints of extortion become ra- 
ther less frequent ; and soon afterward a 
statute was passed, " That no man shotdd 
be constrained to find men-at-arms, hobe- 
lers, nor archers, other than those which 
hold by such services, if it be not by 
common assent and grant made in parlia- 
ment."! Yet even in the last year of 
Edward's reign, when the boundaries of 
prerogative and the rights of parliament 
were better ascertained, the king lays a 
sort of claim to impose charges upon his 
subjects in cases of great necessity and 
for the defence of his kingdom. J But this 
more humble language indicates a change 
in the spirit of government, which, after 
long fretting impatiently at the curb, be- 
gan at length to acknowledge the con- 
trolling hand of law. 

These are the chief instances of a 
struggle between the crown and com- 
mons as to arbitrary taxation ; but there 
are two remarkable proceedings in the 
45th and 46th of Edward, which, though 
they would not have been endured in 
later times, are rather anomalies arising 
out of the unsettled state of the constitu- 
tion and the recency of parliamentary 
rights, than mere encroachments of the 
prerogative. In the former year, parlia- 
ment had granted a subsidy of fifty thou- 
sand pounds, to be collected by an assess- 
ment of twenty-two shilhngs and three- 
pence upon every parish, on a presump- 
tion that the parishes in England amount- 
ed to forty-five thousand, whereas they 
were hardly a fifth of that number. This 
amazing mistake was not discovered till 
the parliament had been dissolved. Upon 
its detection, the king summoned a great 
council,^ consisting of one knight, citizen, 
and burgess, named by himself out of 
two that had been returned to the last 

» Rot. Pari., p. ICl, 166,201. 
+ 25 E. III., st3t. v., c. 8. 
i Rot. Pari., vui. li., p. 366. 
^ Prvnne's 4th Register, p. 289. 



376 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



parliament. To this assembly the chan- 
cellor set forth the deficiency of the last 
subsidy, and proved by tlie certificates of 
all the bishops in England how strangely 
the parliament had miscalculated the 
number of parishes; whereupon they 
increased the parochial assessment by 
their own authority to one hundred and 
sixteen shillings.* It is obvious that the 
main intention of parliament was carried 
into effect by tliis irregularity, which 
seems to have been the subject of no 
complaint. In the next parliament, a 
still more objectionable measure was re- 
sorted to ; after the petitions of tlie com- 
mons had been answered, and the knights 
dismissed, the citizens and burgesses 
were convened before the Prince of 
Wales and the lords in a room near the 
white chamber, and solicited to renew 
their subsidy of forty shillings upon the 
tun of wine, and sixpence in the pound 
upon other imports, for safe convoy of 
shipping, during one year more ; to which 
they assented; "and so departed."! 

The second constitutional principle es- 
Thecon- tablished in the reign of Ed- 
curreiice of ward III. was, that the king and 
\ntg^l'^ two houses of parliament in 
Tionneces- conjunction possessed exclu- 
sary. sively the right of legislation. 

Laws were now declared to be made by 
the king at the request of the commons, 
and by the assent of the lords and pre- 
lates. Such at least was the general 
form, though for many subsequent ages 
there was no invariable regularity in this 
respect. The commons, who till this 
reign were rarely mentioned, were now 
as rarely omitted in the enacting clause. 
In fact, it is evident from the rolls of 
parhament, that statutes were almost 
always founded upon their petition. J 

* Rot. Pari., p. 304. 

t Idem, p. 310. In the mode of levying sub- 
sidies, a remarkable improvement took place ear- 
ly in the reign of Edward III. Originally two 
chief taxers were appointed by the king for each 
county, who named twelve persons in every hun- 
dred to assess the moveable estate of all inhabi- 
tants accordmg to its real value. But in 8 E. III., 
on complaint of parliament, that these taxers were 
partial, commissioners were sent round to com- 
pound with every town and parish for a gross sum, 
which was from thenceforth the fixed quota of sub- 
sidy, and raised by the inhabitants themselves. — 
Brady on Boroughs, p. 81. 

% Laws appear to have been drawn up and pro- 
posed to the two houses by the kmg, down to the 
time of Edward I.— Hale's Hist, of Common Law, 
p. 16. 

Sometimes the representatives of particular 
places address separate petitions to the king and 
council ; as the citizens of London, the commons 
of Devonshire, &c. These are intermingled with 
the general petitions, and both together are for the 



These petitions, with the respective an- 
swers made to them in the king's name, 
were drawn up after the end of the ses- 
sion in tlie form of laws, and entered 
upon the statute-roll. But here it must 
be remarked, that the petitions were 
often extremely qualified and altered by 
the answer, insomuch that many statutes 
of this and some later reigns by no 
means express the true sense of the com- 
mons. Sometimes they contented them- 
selves with showing their grievance, and 
praying remedy from the king and his 
council. Of this one eminent instance 
is the great statute of treasons. In the 
petition whereon this act is founded, it is 
merely prayed that, " whereas the king's 
justices in different counties adjudge per- 
sons endicted before them to be traitors 
for sundry matters not known by the 
commons to be treason, it would please 
the king by his council, and by the great 
and wise men of the land, to declare 
what are treasons in this present parlia- 
ment." The answer to this petition con- 
tains the existing statute, as a declara- 
tion on the king's part.* But there is no 
appearance that it received the direct as- 
sent of the lower house. In the next 
reigns we shall find more remarkable in- 
stances of assuming a consent which was 
never positively given. 

The statute of treasons, however, was 
supposed to be declaratory of the ancient 
law ; in permanent and material innova- 
tions, a more direct concurrence of all 
the estates was probably required. A 
new statute, to be perpetually incorpo- 
rated with the law of England, was re- 
garded as no light matter. It was a very 
common answer to a petition of the com- 
mons, in the early part of this reign, that 
it could not be granted without making a 
new law. After the parliament of 14 E. 
III., a certain number of prelates, barons,, 
and counsellors, with twelve knights and 
six burgesses, were appointed to sit from 
day to day, in order to turn such petitions 
and answers as were fit to be perpetual 
into a statute ; but, for such as were of a 
temporary nature, the king issued his let- 
ters patent. t This reluctance to iimo- 
vate without necessity, and to swell the 
number of laws which all were bound to 
know and obey with an accumulation of 
transitory enactments, led apparently to 
the distinction between statutes statutes dig 
and ordinances. The latter are tinguistiea 
indeed defined by some law- '''"o'"<"'di 
yers to be regulations proceed- 
most part very numerous. In the roll of 50 Edw 
III. they amount to 140. 

* Rot. Pari, p. 239. t Wem, p. Iia 



Part III.] 



ENGLISH CONSTITUTION. 



377 



ing from the king and lords, without con- 
currence of the commons. But if this 
be applicable to some ordinances, it is 
certain that the word, even when op- 
posed to statute, with which it is often 
synonymous, sometimes denotes an act 
of the whole legislature. In the 37th of 
Edward III., when divers sumptuary reg- 
ulations against excess of apparel were 
made in full parliament, " it was demand- 
ed of the lords and commons, inasmuch 
as the matter of their petitions was novel 
and unheard of before, whether they 
would have them granted by way of or- 
dinance or of statute. They answered 
that it would be best to have them by 
way of ordinance and not of statute, in 
order that any thing which should need 
amendment might be amended at the 
next parliament."* So much scruple did 
they entertain about tampering with the 
statute law of the land. 

Ordinances, which, if it were not for 
their partial or temporary operation, 
could not well be distinguished from 
laws,! were often established in great 
councils. These assemblies, which fre- 
quently occurred in Edward's reign, were 
hardly distinguishable, except in name, 
from parliaments, being constituted not 
only of those who were regularly sum- 
moned to the house of lords, but of dep- 
uties from counties, cities, and boroughs. 
Several places that never returned bur- 
gesses to parliament have sent deputies 
to some of these councils. J The most 
remarkable of these was that held in the 
27th of Edward III., consisting of one 
knight for each county, and of deputies 
from all the cities and boroughs, wherein 
the ordinances of the staple were estab- 
lished. These were previously agreed 
upon by the king and lords, and copies 
given, one to the knights, another to the 
burgesses. The roll tells us, that they 
gave their opinion in writing to the coun- 
cil, after much deliberation, and that this 
was read and discussed by the great men. 
These ordinances fix the staple of wool 
in particular places within England, pro- 
hibit English merchants from exporting 

* Rot. Pari., p. 280. 

+ " If there be any difference between an ordi- 
nance and a statute, as some have collected, it is 
but only this, that an ordinance is but temporary 
till confirmed and made perpetual ; but a statute is 
perpetual at first, and so have some ordinances also 
been." — Whitelocke on Parliamentary Writ, vol. 
ii., p. 297. See Rot. Pari., vol. iii., p. 17 ; vol. iv., 
p. 35.~ 

t These may be found in Willis's Notitia Parlia- 
mentaria. In 28 E. I., the universities were sum- 
moned to send members to a great council, in or- 
der to defend the king's right to the kingdom of 
Scotland. — 1 Prynne. 



that article under pain of death, inflict 
sundry other penalties, create jurisdic- 
tions, and, in short, have the effect of 
a new and important law. After they 
were passed, the deputies of the com- 
mons granted a subsidy for three years, 
complained of grievances, and received 
answers, as if in a regular parliament. 
But they were aware that these proceed- 
ings partook of some irregularity, and 
endeavoured, as was their constant meth- 
od, to keep up the legal forms of the 
constitution. In the last petition of this 
council, the commons pray, " because 
many articles touching the state of the 
king, and common profit of his kingdom, 
have been agreed by him, the prelates, 
lords, and commons of his land, at this 
council, that the said articles may be re- 
cited at the next parliament, and entered 
upon the roll ; for this cause, that ordi- 
nances and agreements made in council 
are not of record, as if they had been 
made in a general parliament." This 
accordingly was done at the ensuing par- 
liament, when these ordinances were ex- 
pressly confirmed, and directed to be 
" holden for a statute to endure al- 
ways."* 

It must be confessed, that the distinc- 
tion between ordinances and statutes is 
very obscure, and perhaps no precise 
and uniform principle can be laid down 
about it. But it sufficiently appears that 
whatever provisions altered the common 
law or any former statute, and were en- 
tered upon the statute-roll, transmitted 
to the sheriffs, and promulgated to the 
people as general obligatory enactments, 
were holden to require the positive as- 
sent of both houses of parliament, duly 
and formally summoned. 

Before we leave this subject, it will be 
proper to take notice of a remarkable 
stretch of prerogative, which, if drawn 
into precedent, would have efl^'ectually 
subverted this principle of parliamentary 
consent in legislation. In the 15th of 
Edward III., petitions were presented of 
a bolder and more enervating cast than 
was acceptable to the court; that no peer 
shoidd be put to answer for any trespass, 
except before his peers ; that commis- 
sioners should be assigned to examine 
the accounts of such as had received 
public moneys ; that the judges and min- 
isters should be sworn to observe the 
Great Charter and other laws ; and that 
they should be appointed in parliament. 
The last of these was probably the most 
obnoxious ; but the king, unwiUing to de- 
fer a supply which was granted merely 



* Rot. Pari., p. 253, 257 



373 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII, 



upon condition that these petitions should 
picvuil, sutTered them to pass into a stat- 
ute, with an aUeration which did not take 
off much from their efficacy; namely, 
that these officers should indeed be ap- 
pointed by the king, with the advice of 
his council, but should surrender their 
charges at the next parhament, and be 
tliere responsible to any who should have 
cause of complaint against them. The 
chancellor, treasurer, and judges entered 
tlieir protestation that they had not as- 
sented to the said statutes, nor could they 
observe them in case they should prove 
contrary to the laws and customs of the 
kingdom, which they were sworn to 
maintain.* This is the first instance of 
a protest on the roll of parliament against 
the passing of an act. Nevertheless they 
were compelled to swear on the cross 
of Canterbury to its observance.! 

This excellent statute was attempted 
too early for complete success. Ed- 
ward's ministers plainly saw that it left 
them at the mercy of future parUaments, 
who would readily learn the wholesome 
and constitutional principle of sparing the 
sovereign while they punished his advi- 
sers. They had recourse, therefore, to a 
violent measure, but which was likely in 
those times to be endured. By a procla- 
. raalion addressed to all the sheriffs, the 
king revokes and annuls the statute, as 
contrary to the laws and customs of 
England, and to his own just rights and 
prerogatives, which he had sworn to pre- 
serve ; declaring that he had never con- 
sented to its passing, but having previous- 
ly protested that he would revoke it, lest 
the parliament should have been separa- 
ted in wrath, had dissembled, as was his 
duty, and permitted the great seal to be 
affixed ; and that it appeared to the earls, 
barons, and other learned persons of his 
kingdom, with whom he had consulted, 
that as the said statute had not proceed- 
ed from his own good-will, it was null, 
and could not have the name or force of 
law. J This revocation of a statute, as 
the price of which a subsidy had been 
granted, was a gross infringement of law, 
and undoubtedly passed for such at that 
time ; for the right was already clear, 
though the remedy was not always at- 
tainable. Two years afterward Ed- 
ward met his parliament, when that ob- 
noxious statute was formally repealed. 
Notwithstanding the king's unwilling- 

* Rot. Pari., p. 131, fid., p. 128. 

t Rymer, t. v., p. 282. This instrument betrays 
in its language Edward's consciousness of the vio- 
lent step he was taking, and his wish to excuse it 
as much as possible. 



ness to permit this control of Advice of 
parliament over his administra- parliament 
tion, he suffered, or rather soli- [,^2u;rs''or 
cited, their interference in mat- war and 
ters which have since been P'^^'^^- 
reckoned the exclusive province of the 
crown. This was an unfair trick of his 
policy. He was desirous, in order to 
prevent any murmuring about subsidies, 
to throw the war upon parliament as 
their own act, though none could have 
been commenced more selfishly for his 
own benefit, or less for the advantage of 
the people of England. It is called " the 
war which our lord the king has underta- 
ken against his adversary of France, by 
common assent of all the lords and com- 
mons of his realm in divers parlia- 
ments."* And he several times referred 
it to them to advise upon the subject of 
peace. But the commons showed their 
humility or discretion by treating this as 
an invitation which it would show good 
manners to decline, though in the 18th of 
the king's reign they had joined with the 
lords in imploring the king to make an 
end of the war by a battle or by a suita- 
ble peace. t " Most dreaded lord," they 
say upon one occasion, " as to your war, 
and the equipment necessary for it, we 
are so ignorant and simple that we know 
not how, nor have the poAver to devise : 
wherefore we pray your grace to excuse 
us in this matter, and that it please you, 
with advice of the great and wise persons 
of your council, to ordain what seems 
best to you for the honour and profit of 
yourself and your kingdom ; and what- 
ever shall be thus ordained by assent and 
agreement for you and your lords, Ave 
readily assent to, and will hold it firmly 
estabUshed."J: At another time, after 
their petitions had been answered, " it 
was showed to the lords and commons 
by Bartholomew de Burghersh,lhe king's 
chamberlain, how a treaty had been set 
on foot between the king and his adver- 
sary of France ; and how he had good 
hope of a final and agreeable issue with 
God's help ; to which he would not come 
without assent of the lords and commons. 
Wherefore the said chamberlain inquired 
on the king's part of the said lords and 
commons whether they would assent and 
agree to the peace, in case it might be 
had by treaty between the parties. To 
which the said commons with one voice 
replied, that whatever end it should 
please the king and lords to make of the 
treaty, would be agreeable to them. On. 
which answer the chamberlain said to 



* Rymer, t. v., p. 165. 
t 21 E. III., p. 165. 



t Id., p. 148. 



Fart III] 



ENGLISH CONSTITUTION. 



379 



the commons, then you will assent to a 
perpetual treaty of peace if it can be had. 
And the said commons answered at once 
and unanimously, yes, yes."* The lords 
were not so diffident. Their great sta- 
tion as hereditary counsellors gave them 
weight in all deliberations of govern- 
ment ; and they seem to have pretended 
to a negative voice in the question of 
peace. At least they answer, upon the 
proposals made by David, king of Scots, 
in 1368, which were submitted to them 
in parliament, that, " saving to the said 
David and his heirs the articles contained 
therein, they saw no way of making a 
treaty which would not openly turn to 
the disherison of the king and his heirs, 
to which they would on no account as- 
sent; and so departed for that day."t A 
few years before they had made a sim- 
ilar answer to some other propositions 
from Scotland. J It is not improbable, 
that in both these cases they acted with 
the concurrence and at the instigation of 
the king ; but the precedents might have 
been remembered in other circumstances. 

A third important acquisition of the 
f h '^"^"s® of commons during this 
commons to reign was the establishment of 
inquire into their right to investigate and 
public abu- chastise the abuses of adminis- 
tration. In the fourteenth of 
Edward III., a committee of the lords' 
house had been appointed to examine the 
accounts of persons responsible for the 
receipt of the last subsidy ; but it does 
not appear that the commons were con- 
cerned in this.^ The unfortunate statute 
of the next year contained a similar pro- 
vision, which was annulled with the rest. 
Many years elapsed before the commons 
tried the force of their vindictive arm. 
We must pass onward an entire generation 
of man, and look at the parliament as- 
sembled in the fiftieth of Edward III. 
Nothing memorable as to the interfe- 
rence of the commons in government 
occurs before, unless it be their request, 
in the forty-fifth of the king, that no 
clergyman should be made chancellor, 
treasurer, or other great officer ; to which 
the king answered, that he would do 
what best pleased his council. || 

It will be remembered by every one 
Parliament who has read our history, that 
of 50 E. m. ii^ the latter years of Edward's 
life, his fame was tarnished by the as- 

*28 E. in., p. 261. 

t Id., p. 295. Carte says, "the lords and com- 
mons giving this advice separately, declared," &c. 
— Hist, of England, vol. li.. p. 518. I can find no 
mention of the commons doing this in the roll of 
parliament. t Rymer, t. v., p. 269. 

^ Id., p. 114. II Id., p. 304. 



cendency of the Duke of Lancaster and 
Alice Ferrers. The former, a man of 
more ambition than his capacity seems 
to have warranted, even incurred the sus- 
picion of meditating to set aside the heir 
of the crown, when the Black Pritice 
should have sunk into the grave. Wheth- 
er he was wronged or not by these con- 
jectures, they certainly appear to have 
operated on those most concerned to 
take alarm at them. A parliament met 
in April, 1376, wherein the general un- 
popularity of the king's administration, 
or the influence of the Prince of Wales, 
led to very remarkable consequences.* 
After granting a subsidy, the commons, 
" considering the evils of the country, 
through so many wars and other causes, 
and that the oflicers now in the king's 
service are insufficient without further as- 
sistance for so great a charge, pray that 
the council be strengthened by the addi- 
tion of ten or twelve bishops, lords, and 
others, to be constantly at hand, so that 
no business of weight should be despatch- 
ed without the consent of all ; nor small- 
er matters without that of four or six."t 
The king pretended to come with alacrity 
into this measure, which was followed 
by a strict restraint on them and all other 
oflicers from taking presents in the course 
of their duty. After this, " the said com 
mens appeared in parliament, protesting 
that they had the same good-will as ever 
to assist the king with their lives and for- 
tunes ; but that it seemed to them, if 
their said liege lord had always possessed 
about him faithful counsellors and good 
officers, he would have been so rich that 
he would have had no need of charging 
his commons with subsidy or tallage, 
considering the great ransoms of the 
French and Scotch kings, and of so 
many other prisoners ; and that it ap- 
peared to be for the private advantage 
of some near the king, and of others by 
their collusion, that the king and kingdom 
are so empoverished, and the commons 
so ruined. And they promised the king 
that if he would do speedy justice on 
such as should be found guilty, and take 
from them what law and reason permit, 



* Most of our general historians have slurred 
over this important session. The best view, per 
haps, of its secret history will be found in Lowih's 
Life of Wykeham ; an instructive and elegant 
work, only to be blamed for marks of that aca- 
demical point of honour, which makes a fellow of 
a college too indiscriminate an encomiast of its 
founder. Another modern book may be named 
with some commendation, though very inferior in 
its execution, Godwin's Life of Chaucer, of which 
the Duke of Lancaster is the political hero. 

t Rymer, t. v., p. 322. 



380 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



with what had been already granted in 
parliament, they will engage that he 
should be rich enough to maintain his 
wars for a long time, without much 
charging his people in any manner." 
They next proceeded to allege three 
particular grievances ; the removal of the 
staple from Calais, where it had been fixed 
by parliament, through the procurement 
and advice of the said private counsellors 
about the king ; the participation of the 
same persons in lending money to the 
king at exorbitant usury ; and their pur- 
chasing at a low rate for their own ben- 
efit old debts from the crown, the whole 
of which they had afterward induced 
the king to repay to themselves. For 
these and for many more misdemeanors, 
the commons accused and impeached the 
lords Latimer and Nevil, with four mer- 
chants, Lyons, Elhs, Peachey, and Bury.* 
Latimer had been chamberlain, and Nevil 
held another office. The former was the 
friend and creature of the Duke of Lan- 
caster. Nor was this parliament at all 
nice in touching a point where kings least 
endure their interference. An ordinance 
was made, that " whereas many women 
prosecute the suits of others in courts 
of justice by way of maintenance, and to 
get profit thereby, which is displeasing to 
the king, he forbids any woman hence- 
forward, and especially Alice Ferrers, to 
do so, on pain of the said Alice forfeiting 
all her goods, and suffering banishment 
from the kingdom."! 

The part which the Prince of Wales, 
who had ever been distinguished for his 
respectful demeanour towards Edward, 
bore in this unprecedented opposition, is 
strong evidence of the jealousy with 
which he regarded the Duke of Lancas- 
ter ; and it was led in the house of com- 
mons by Peter de la Mare, a servant of 
the Earl of March, who, by his marriage 
with Philippa, heiress of Lionel, duke 
of Clarence, stood next after the young 
prince Richard in lineal succession to 
the crown. The proceedings of this ses- 
sion were indeed highly popular. But no 
house of commons would have gone such 
lengths on the mere support of popular 
opinions, unless instigated and encoura- 
ged by higher authority. Without this, 
their petitions might perhaps have ob- 
tained, for the sake of subsidy, an im- 
mediate consent ; but those who took 
the lead in preparing them must have re- 
mained unsheltered after a dissolution, 
to abide the vengeance of the crown, 
with no assurance that another parlia- 



* Rymer t. v., p. 332. 



t Id., p. 329. 



ment would espouse their cause as its 
own. Such indeed was their fate in the 
present instance. Soon after the disso- 
lution of parliament, the Prince of Wales, 
who, long smking by fatal decay, had 
rallied his expiring energies for this do- 
mestic combat, left his inheritance to a 
child ten years old, Richard of Bordeaux. 
Immediately after this event, Lancaster 
recovered his influence ; and the former 
favourites returned to court. Peter de la 
Mare was confined at Nottingham, where 
he remained two years. The citizens 
indeed attempted an insurrection, and 
threatened to burn the Savoy, Lancaster's 
residence, if De la Mare was not released ; 
but the Bishop of London succeeded in 
appeasing them.* A parliament met next 
year, which overthrew the work of its 
predecessor, restored those who had been 
impeached, and repealed the ordinance 
against Alice Perrers.f So little secu- 
rity will popular assemblies ever afford 
against arbitrary power, when deprived 
of regular leaders and the consciousness 
of mutual fidelity. 

The policy adopted by the Prince of 
Wales and Earl of March, in employing 
the house of commons as an engine of 
attack against an obnoxious ministry, 
was perfectly novel, and indicates a sen- 
sible change in the character of our con- 
stitution. In the reign of Edward II., 
parliament had little share in resisting 
the government ; much more was effected 
by the barons, through risings of their 
feudal tenantry. Fifty years of authority 
better respected, of law better enforced, 
had rendered these more perilous, and of 
a more violent appearance than formerly. 
A surer resource presented itself in the 
increased weight of the lower house in 
parliament. And this indirect aristocrat- 
ical influence gave a surprising impulse 
to that assembly, and particularly tended 
to establish beyond question its control 
over public abuses. It is less just, to re- 
mark, that it also tended to preserve the 
relation and harmony between each part 
and the other, and to prevent that jarring 
of emulation and jealousy, which, though 
generally found in the division of power 
between a noble and a popular estate, has 
scarcely ever caused a dissension, ex- 
cept in cases of little moment, between 
our two houses of parliament ] 



* Anonym. Hist. Edw. III., ad calcem Heming- 
ford, pp. 444, 448. Walsingham gives a diflerent 
reason, p. 192. 

t Rot. Pari., p. 374. Not more than six or seven 
of the knights who had sat in the last parliament 
were returned to this, as appears by the writs in 
Prynne's 4th Register, p. 302, 311. 



Part III.] 



ENGLISH CONSTITUTION. 



381 



The commons had sustained with equal 
firmness and discretion a defen- 
Grearin sivc war against arbitrary pow- 
creaseofthe er Under Edward III. : they 
commons'."^ advanced with very different 
steps towards his successor. 
Upon the king's death, though Richard's 
coronation took place without delay, and 
no proper regency was constituted, yet 
a council of twelve, whom the great offi- 
cers of state were to obey, supplied its 
place to every effectual intent. Among 
these the Duke of Lancaster was not 
numbered ; and he retired from court in 
some disgust. In the first parliament of 
the young king, a large proportion of the 
knights who had sat in that which im- 
peached the Lancasterian party were re- 
turned.* Peter de la Mare, now releas- 
ed from prison, was elected speaker ; a 
dignity which, accordmg to some, he had 
filled in the Good Parliament, as that of 
the fiftieth of Edward III. was popular- 
ly styled ; though the rolls do not men- 
tion either him or any other as bearing 
that honourable name before Sir Thomas 
Hungerford in the parliament of the fol- 
lowing year.f The prosecution against 
Alice Perrers was now revived ; not, as 
far as appears, by direct impeachment of 
the commons ; but articles were exhibit- 
ed against her in the house of lords on 
the king's part, for breaking the ordi- 
nance made against her intermeddling at 
court ; upon which she received judg- 
ment of banishment and forfeiture. | At 
the request of the lower house, the lords 
in the king's name appointed nine per- 
sons of different ranks ; three bishops, 
two earls, two bannerets, and two bache- 
lors, to be a permanent council about the 
king, so that no business of importance 
should be transacted without their unani- 
mous consent. The king was even com- 
pelled to consent that, during his minor- 
ity, the chancellor, treasurer, judges, and 
other chief officers should be made in 
parliament ; by which provision, combi- 
ned with that of the parhamentary coun- 
cil, the whole executive government was 
transferred to the two houses. A peti- 
tion that none might be employed in the 
king's service, nor belong to his council, 
who had been formerly accused upon 
good grounds, struck at Lord Latimer, 
who had retained some degree of power 

* Walsingham, p. 200, says pene omnes ; but the 
list published in Prynne's 4th Register induces me 
to quahfy this loose expression. Alice Perrers had 
bribed, he tells us, many of the lords, and all the 
lawyers of England; yet by the perseverance of 
these knights she was convicted. 

+ Rot. Pari., vol. ii., p. 374. 

i Idem, vol. iii., p. 12, 



in the new establishment. Another, sug- 
gesting that Gascony, Ireland, Artois, and 
the Scottish marches were in danger of be- 
ing lost for want of good officers, though 
it were so generally worded as to leave 
the means of remedy to the king's pleas- 
ure, yet shows a growing energy and 
self-confidence in that assembly, which 
not many years before had thought the 
question of peace or war too high for 
their deliberation. Their subsidy was 
sufficiently liberal ; but they took care to 
pray the king that fit persons might be 
assigned for its receipt and disburse- 
ment, lest it should any way be diverted 
from the purposes of the war. Accord- 
ingly Walworth and Philpot, two eminent 
citizens of London, were appointed to 
this office and sworn in parliament to its 
execution.* 

But whether through the wastefulness 
of government, or rather because Ed- 
ward's legacy, the French war, like a 
ruinous and interminable lawsuit, ex- 
hausted all public contributions, there 
was an equally craving demand for sub- 
sidy at the next meeting of parliament. 
The commons now made a more serious 
stand. The speaker, Sir James Picker- 
ing, after the protestation against giving 
oflence, which has since become more 
matter of form than perhaps it was then 
considered, reminded the lords of the 
council of a promise made to the last 
parliament, that, if they would help the 
king for once with a large subsidy so as 
to enable him to undertake an expedition 
against the enemy, he trusted not to call 
on them again, but to support the war 
from his own revenues ; in faith of which 
promise there had been granted the lar- 
gest sum that any king of England had 
ever been suffered to levy witliin so short 
a time, to the utmost loss and inconve- 
nience of the commons ; part of which 
ought still to remain in the treasury, and 
render it unnecessary to burden anew 
the exhausted people. To this Scrope, 
lord-steward of the household, protesting 
that he knew not of any such promise, 
made answer by order of the king, that, 
" saving the honour and reverence of our 
lord the king and the lords there pres- 
ent, the commons did not speak truth in 
asserting that part of the last subsidy 
should be still in the treasury ; it being 
notorious that every penny had gone into 
the hands of Walworth and Philpot, ap- 
pointed and sworn treasurers in the last 
parliament, to receive and expend it upon 
the purposes of the war, for which they 

» Rot. Pari., vol. iii., p. 12. 



382 



EUROPE DURING THE MIDDLE AGE9. 



tCHAP. VIII. 



had in effect disbursed the whole." Not 
satisfied with this general justification, the 
commons pressed for an account of the 
expenditure. Scrope was again commis- 
sioned to answer, that " though it had nev- 
er been seen, that of a subsidy or other 
grant made to the king in parliament or 
out of parliament by the commons, any 
account had afterward been rendered to 
the commons, or to any other except the 
king and his officers, yet the king, to grat- 
ify them, of his own accord, without do- 
ing it by way of right, would have Wal- 
worth, along with certain persons of the 
council, exhibit to them in writing a clear 
account of the receipt and expenditure, 
upon condition that this should never be 
used as a precedent, nor inferred to be 
done otherwise than by the king's spon- 
taneous command." The commons were 
again urged to provide for the public de- 
fence, being their own concern as much 
as that of the king. But they merely 
shifted their ground and had recourse to 
other pretences. They requested that 
five or six peers might come to them, in 
order to discuss this question of subsidy. 
The lords entirely rejected this proposal, 
and affirmed that such a proceeding had 
never been known except in the three 
last parliaments ; but allowed that it had 
been the course to elect a committee of 
eight or ten from each house, to confer 
easily and without noise together. The 
commons acceded to this, and a commit- 
tee of conference was appointed, though 
no result of their discussion appears upon 
the roll. 

Upon examining the accounts submit- 
ted to them, these sturdy commoners 
raised a new objection. It appeared that 
large sums had been expended upon gar- 
risons in France and Ireland, and other 
places beyond the kingdom, of which 
they protested themselves not liable to 
bear the charge. It was answered that 
Gascony and the king's other dominions 
beyond sea were the outworks of Eng- 
land, nor could the people ever be secure 
from war at their thresholds unless these 
were maintained. They lastly insisted 
that the king ought to be rich through the 
wealth that had devolved on him from 
his grandfather. But this was affirmed, 
in reply, to be merely sufficient for the 
payment of Edward's creditors. Thus 
driven from all their arguments, the com- 
mons finally consented to a moderate ad- 
ditional imposition upon the export of 
wool and leather,* which were already 
subject to considerable duties, apologi- 

* Rot. Pari, p. 35—38. 



zing on account of their poverty for tho 
slenderness of their grant. 

The necessities of government, how- 
ever, let their cause be what it might, 
were by no means feigned; and a new 
parliament was assembled about seven 
months after the last, wherein the king, 
without waiting for a petition, informed 
the commons that the treasurers were 
ready to exhibit their accounts before 
them. This was a signal victory after 
the reluctant and ungracious concession 
made to the last parliament. Nine per- 
sons of different ranks were appointed at 
the request of the commons to investi- 
gate the state of the revenue, and the dis- 
position which had been made of the late 
king's personal estate. They ended by 
granting a poll-tax, which they pretended 
to think adequate to the supply required.* 
But in those times no one possessed any 
statistical knowledge, and every calcula- 
tion which required it was subject to 
enormous error, of which we have al- 
ready seen an eminent example. f In 
the next parliament (3 Ric. II.) it was set 
forth that only £22,000 had been collect- 
ed by the poll-tax, while the pay of the 
king's troops hired for the expedition to 
Britany, the pretext of the grant, had 
amounted for but half a year to jC50,000. 
The king, in short, was more straitened 
than ever. His distresses gave no small 
advantage to the commons . Their speak- 
er was instructed to declare that, as it 
appeared to them, if the affairs of their 
liege lord had been properly conducted 
at home and abroad, he could not have 
wanted aid of his commons, who are now 
poorer than before. They pray that, as 
the king was so much advanced in age 
and discretion, his perpetual council (ap- 
pointed in his first parliament) might be 
discharged of their labours ; and that, in- 
stead of them, the five chief officers of 
state, to wit, the chancellor, treasurer, 
keeper of the privy seal, chamberlain, 
and steward of the household, might be 
named in parliament, and declared to the 
commons as the king's sole counsellors, 
not removable before the next parlia- 
ment. They required also a general 
commission to be made out, similar to 
that in the last session, giving powers to 
a certain number of peers and other dis- 
tinguished persons, to inquire into the 
state of the household, as well as into all 
receipts and expenses since the king's 
accession. The former petition seems 
to have been passed over ;% but a com- 

* Rot. Pari., p. 57. f See ante, p. 375. 

t Nevertheless, the commons repeated it in their 
schedule of petitions ; and received an evasive an- 



Part III] 



ENGLISH CONSTITUTION. 



383 



mission as requested Avas made out to 
three prelates, three earls, three banner- 
ets, three knights, and three citizens.* 
After guarding thus, as they conceived, 
against malversation, but in effect rath- 
er protecting their posterity than them- 
selves, the commons prolonged the last 
imposition on wool and leather for an- 
other year. 

It would be but repetition to make ex- 
tracts from the rolls of the two next 
years ; we have still the same tale ; de- 
mand of subsidy on one side, remon- 
strance and endeavours at reformation on 
the other. After the tremendous insur- 
rection of the villeins, in 1382, a parlia- 
ment was convened to advise about re- 
pealing the charters of general manumis- 
sion, extorted from the king by the pres- 
sure of circumstances. In this measure 
all concurred ; but the commons were not 
afraid to say that the late risings had been 
provoked by the burdens which a prodi- 
gal court had called for in the preceding 
session. Their language is unusually 
bold. " It seemed to them, after full de- 
liberation," they said, " that unless the 
administration of the kingdom were 
speedily reformed, the kingdom itself 
would be utterly lost and ruined for ever, 
and therein their lord the king, with all 
the peers and commons, which God for- 
bid. For true it is that there are such 
defects in the said administration, as well 
about the king's person and his house- 
hold, as in his courts of justice ; and 
by grievous oppressions in the country 
through maintainers of suits, who are, as 
it were, kings in the country, that right 
and law are come to nothing, and the poor 
commons are from time to time so pil- 
laged and ruined, partly by the king's pur- 
veyors of the household, and others who 
pay nothing for what they take, partly by 
the subsidies and tallages raised upon 
them, and besides by the oppressive be- 
haviour of the servants of the king and 
other lords, and especially of the afore- 
said maintainers of suits, that they are 
reduced to greater poverty and discom- 
fort than ever they were before. And 
moreover, though great sums have been 
continually granted by and levied upon 
them for the defence of the kingdom, 
yet they are not the better defended 
against their enemies, but every year are 



swer, referring to an ordinance made in the first 
parliament of the king, the application of which is 
indefinite, p. 379. 

* See ante, p. 377. In Rymer, t. viii., p. 250, the 
Archbishop of ' York's name appears among these 
commissioners, which makes their number sixteen. 
But it is plain by the instrument that only fifteen 
were meant to be appointed. 



plundered and wasted by sea and land, 
without any relief. Which calamities 
the said poor commons, who lately used 
to live in honour and prosperity, can no 
longer endure. And to speak the real 
truth, these injuries lately done to the 
poorer commons more than they ever 
suffered before, caused them to rise, and 
to commit the mischief done in their late 
riot; and there is still cause to fear 
greater evils, if sufficient remedy be not 
timely provided against the outrages and 
oppressions aforesaid. Wherefore may 
it please our lord the king, and the noble 
peers of the realm now assembled in this 
parliament, to provide such remedy and 
amendment as to the said administration, 
that the state and dignity of the king in 
the first place, and of the lords may be 
preserved, as the commons have always 
desired, and the commons may be put in 
peace ; removing, as soon as they can be 
detected, evil ministers and counsellors, 
and putting in their stead the best and 
most stifficient, and taking away all the 
bad practices which have led to the last 
rising, or else none can imagine that 
this kingdom can longer subsist without 
greater misfortunes than it ever endured. 
And for God's sake let it not be forgot- 
ten, that there be put about the king and 
of his council the best lords and knights 
that can be found in the kingdom. 

" And be it known (the entry proceeds) 
that after the king our lord, with the 
peers of the realm and his council, had 
taken advice upon these requests made 
to him for his good and his kingdom's 
as it really appeared to him, willed and 
granted, that certain bishops, lords, and 
others should be appointed to survey, 
and examine in privy council both the 
government of the king's person and of 
his household, and to sttggest proper 
remedies wherever necessary, and re- 
port them to the king. And it was said 
by the peers in parliament, that as it 
seemed to them, if reform of government 
were to take place throughout the king- 
dom,it should begin by the chief member, 
which is the king himself, and so from 
person to person, as well churchmen as 
others, and place to place, from higher to 
lower, without sparing any degree."* A 
considerable number of commissioners 
were accordingly appointed, whether by 
the king alone or in parliament does not 
appear ; the latter, however, is more 
probable. They seem to have made 
some progress in the work of reforma- 
tion, for we find that the officers of the 
household were sworn to observe their 



Rot. Pari., 5 R. II., p. 100. 



384 



EUROPE DURING THE MIDDLE AGES, 



[Chap. VIII 



regulations. But in all likelihood these 
were soon neglected. 

It is not wonderful, that with such feel- 
ings of resentment towards the crown, 
the commons were backward in granting 
subsidies. Perhaps the king would not 
have obtained one at all if he had not 
withheld his charter of pardon for all of- 
fences committed during the insurrec- 
tion. This was absolutely necessary to 
restore quiet among the people ; and 
though the members of the commons had 
certainly not been insurgents, yet inevi- 
table irregularities had occurred in quel- 
ling the tumults, which would have put 
them too much in the power of those un- 
Avorthy men who filled the benches of 
justice under Richard. The king de- 
clared that it was unusual to grant a par- 
don without a subsidy ; the commons 
still answered that tliey would consider 
about the matter ; and the king instantly 
rejoined that he would consider about 
his pardon (s'aviseroit de sa dite grace) 
till they had done what they ought. 
They renewed at length the usual tax on 
wool and leather.* 

This extraordinary assumption of pow- 
er by the commons was not merely ow- 
ing to the king's poverty. It was en- 
couraged by the natural feebleness of a 
disunited government. The high rank 
and ambitious spirit of Lancaster gave 
him no little influence, though contending 
with many enemies at court, as well as 
the ill-will of the people. Thomas of 
Woodstock, the king's youngest uncle, 
more able and turbulent than Lancaster, 
became, as he grew older, an eager 
competitor for power, which he sought 
through the channel of popularity. The 
earls of March, Arundel, and Warwick 
bore a considerable part, and were the 
favourites of parliament. Even Lancas- 
ter, after a few years, seems to have fal- 
len into popular courses, and recovered 
some share of public esteem. He was 
at the head of the reforming commission 
in the fifth of Richard II., though he 
had been studiously excluded from those 
preceding. We cannot hope to disentan- 
gle the intrigues of this remote age, as 
to which our records are of no service, 
and the chroniclers are very slightly in- 
formed. So far as we may conjecture, 
Lancaster, finding his situation insecure 
at court, began to solicit the favour of the 
commons, whose hatred of the admin- 
istration abated their former hostility to- 
wards him.f 



* Rot. Pari., 5 R. II, p. 104. 
t The commons granted a subsidy, 7 R. II., to 
tupport Lancaster's war in Castile. — R. P., p. 284. 



The character of Richard II. was now 
developing itself, and the hopes character of 
excited by his remarkable pres- ''"^iiarii- 
ence of mind in confronting the rioters on 
Blackheath were rapidly destroyed. Not 
that he was wanting in capacity, as has 
been sometimes imagined. For if we 
measure intellectual power by the great- 
est exertion it ever displays, rather than 
by its average results, Richard II. was a 
man of considerable talents. He pos- 
sessed, along with much dissimulation, a 
decisive promptitude in seizing the criti- 
cal moment for action. Of this quality, 
besides his celebrated behaviour towards 
the insurgents, he gave striking evidence 
in several circumstances which we shall 
have shortly to notice. But his ordinary 
conduct belied the abilities which on 
these rare occasions shone forth, and 
rendered them ineff"ectual for his securi- 
ty. Extreme pride and violence, with an 
inordinate partiality for the most worth- 
less favourites, were his predominant 
characteristics. In the latter . quality, 
and in the events of his reign, he forms 
a pretty exact parallel to Edward II. 
Scrope, lord chancellor, who had been 
appointed in parliament, and was under- 
stood to be irremoveable without its con- 
currence, lost the great seal for refusing 
to set it to some prodigal grants. Upon 
a slight quarrel with Archbishop Court- 
ney, the king ordered his temporalities to 
be seized, the execution of which Mi- 
chael de la Pole, his new chancellor, and 
a favourite of his own, could hardly pre- 
vent. This was accompanied with inde- 
cent and outrageous expressions of an- 
ger, unworthy of his station and of those 
whom he insulted.* 

Though no king could be less respect- 
able than Richard, yet the con- ^^ ^^^,^^j.^^ 
stitution invested a sovereign more power 
with such ample prerogative, onhisma- 
that it was far less easy to re- ^°"'^" 
sist his personal exercise of power than 
the unsettled councils of a minority. In 
the parliament 6 R. II., sess. 2, the com- 
mons pray certain lords whom they 
name, to be assigned as their advisers. 
This had been permitted in the two last 
sessions without exception.! But the 
king, in granting their request, reseiTed 



Whether the populace changed their opinion of 
him, I know not. He was still disliked by them 
two years before. The insurgents of 1382 are said 
to have compelled men to swear that they would 
obey King Richard and the commons, and that they 
would accept no king named John. — Walsingham, 
p. 248. 

* Walsingham, pp. 290, 315, 3L7. 

t Rot. Pari., 5 R. II., p. 100. 6 R. II., sess. 1 
p. 134. 



Part III.] 



ENGLISH CONSTITUTION. 



'685 



his right of naming any others.* Though 
the commons did not relax in their im- 
portunities for the redress of general 
grievances, they did not venture to inter- 
meddle as before with the conduct of ad- 
ministration. They did not even object 
to the grant of the marquisate of Dubhn, 
with almost a princely dominion over 
Ireland ; which enormous donation was 
confirmed by act of parliament to Vere, 
a favourite of the king.f A petition that 
the officers of state should annually visit 
and inquire into his household, was an- 
swered, that the king would do what he 
pleased. J Yet this was little in compar- 
ison with their former proceedings. 

There is nothing, however, more de- 
Proceedings ceitful to a monarch, unsupport- 
of pariia- q^ jjy ^j^ armed force, and des- 

ment in the ... ^-^ . , . ' . 

tenth of titute of wary advisers, than 
Kichard. this submission of his people. 
A single effort was enough to overturn 
his government. Parliament met in the 
tenth year of his reign, steadily deter- 
mined to reform the administration, and 
especially to punish its chief leader, Mi- 
chael de la Pole, earl of Suffolk, and lord 
chancellor. According to the remarka- 
ble narration of a contemporary histori- 
an,^ too circumstantial to be rejected, but 
rendered somewhat doubtful by the si- 
lence of all other writers and of the par- 
liamentary roll, the king was loitering at 
his palace at Eltham when he received 
a message from the two houses request- 
hig the dismissal of Suffolk, since they 
had matter to allege against him tliat 
they could not move while he kept the 
office of chancellor. Richard, with his 
usual intemperance, answered that he 
would not for their request remove the 
meanest scullion from his kitchen. They 
returned a positive refusal to proceed on 
any public business until the king should 
appear personally in parliament, and dis- 
place the chancellor. The king required 
forty knights to be deputed from the rest, 
to inform him clearly of their wishes. 
But the commons declined a proposal, in 
which they feared, or affected to fear, 
some treachery. At length the Duke of 
Glocester, and Arundel, bishop of Ely, 
were commissioned to speak the sense 
of parliament, and they delivered it, if 
we may still believe what we read, in 



very extraordinary language, asserting 
that there was an ancient statute, accord- 
ing to which, if the king absented him- 
self from parliament without just cause 
during forty days, which he had now ex- 
ceeded, every man might return without 
permission to his own country ; and 
moreover there was another statute, and 
(as they might more truly say) a prece- 
dent of no remote date, that if a king, by 
bad counsel, or his own folly and obsti- 
nacy, alienated himself from his people, 
and would not govern according to the 
laws of the land and the advice of the 
peers, but madly and wantonly followed 
his own single will, it should be lawful 
for them, with the common assent of the 
people, to expel him from his throne, and 
elevate to it some near kinsman of the 
royal blood. By this discourse the king 
was induced to meet his parliament, 
where Suffolk was removed from his of- 
fice, and the impeachment against him 
commenced.* 

The charges against this minister, 
without being wholly frivolous, impeach- 
were not so weighty as the clam- mem of 
our of the commons might have ^"''""'• 
led us to expect. Besides forfeiting all 
his grants from the crown, he was com- 
mitted to prison, there to remain till he 
should have paid such fine as the king 
might impose ; a sentence that would 
have been outrageously severe in many 
cases, though little more than nugatory in 
the present. (■ 

This was the second precedent of that 
grand constitutional resource, commissioa 
parliamentary impeachment ; of reibrm. 
and more remarkable, from the emi- 
nence of the person attacked, than that 
of Lord Latimer, in the fiftieth year of 



* Rot. Pari, 9 R. II., p. 145. t Id., p. 209. 

t Id., p. 213. It is however asserted in the arti- 
cles of impeachment against Suffolk, and admitted 
by his defence, that nine lords had been appointed 
in the last parliament, viz., 9 R. II., to inquire 
into the state of the household, and reform what- 
ever was amiss. But nothing of this appears in 
the roll. 

6 Knyghton, in Twysden, x. Script., col. 2680. 
Bb 



* Upon full consideration, I am much inclined 
to give credit to this passage of Knyghton as to 
the main facts; and, perhaps, even the speech of 
Glocester and the Bishop of Ely is more likely to 
have been made public by them, than invented by 
so jejune an historian. Walsingham indeed says 
nothmg of the matter ; but he is so unequally in- 
formed, and so frequently defective, th?t we can 
draw no strong inference from his silence. What 
most weighs with me is that parliament met on 
Oct. 1, 1387, and was not dissolved till Nov. 28 ; a 
longer period than the business done in it seems to 
have required ; and also that Suffolk, who opened 
the session as chancellor, is styled " darrein chan- 
cellor" in the articles of impeachment against him ; 
so that he must have been removed in the interval, 
which tallies with Knyghton's story. Besides, it 
is plain, from the famous question subsequently 
put by the king to his judges at Nottingham, that 
both the right of retiring without a regular dissolu- 
tion and the precedent of Edward II. had been dis- 
cussed in parliament, which does not appear any 
where else than in Knyghton. 

t Rot. Pari., vol. iii., p. 219. 



386 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



Edward III.* The commons were con- 
tent to waive the prosecution of any oth- 
er ministers ; but they rather chose a 
scheme of reforming tlic administration, 
which should avert both the necessity of 
punishment, and the malversations which 
provoked it. They petitioned the king 
to ordain in parliament certain chief offi- 
cers of his household, and other lords of 
his council, with power to reform those 
abuses, by which his crown was so much 
blemished, that the laws were not kept, 
and his revenues were dilapidated, con- 
firming by a statute a commission for a 
year, and forbidding, under heavy penal- 
ties, any one from opposing, in private 
or openly, what they should advise. f 
With this the king complied, and a com- 
mission founded upon the prayer of par- 
liament was established by statute. It 
comprehended fourteen persons of the 
highest eminence for rank and general 
estimation; princes of the blood and an- 
cient servants of the crown, by whom its 
prerogatives were not likely to be unne- 
cessarily impaired. In fact, the principle 
of this commission, without looking 
back at the precedents in the reign of 
John, Henry III., and Edward II., which 
yet were not without their weight as 
constitutional analogies, was merely that 
which the commons had repeatedly main- 
tained during the minority of the present 
king, and which had produced the former 
commissions of reform in the third and 
fifth years of his reign. These were 
upon the whole nearly the same in their 
operation. It must be owned there was 
a more extensive sway virtually given to 
the lords now appointed, by the penal- 
ties imposed on any who should endeav- 
our to obstruct what they might advise ; 
the design as well as tendency of which 
was no doubt to throw the whole admin- 
istration into their hands during the peri- 
od of this commission. 

Those who have written our history 
with more or less of a tory bias exclaim 
against this parliamentary commission 
as an unwarrantable violation of the 
king's sovereignty, and even impartial 
men are struck at first sight by a meas- 
ure that seems to overset the natural 
balance of our constitution. But it 
would be unfair to blame either those 

* Articles had been exhibited by the chancellor 
before the peers, in the seventh of the kuig, against 
Spencer, bishop of Norwich, who had led a con- 
siderable army into a disastrous expedition against 
the Flemings, adherents to the anlipope Clement, 
in the schism. This crusade haii been exceedmg- 
ly popular, but its ill success had the usual effect. 
The commons were not parties in this proceedmg. 
—Rot. Pari., p. 153. t W., p. 221. 



concerned in this commission, some of 
whose names at least have been handed 
down with unquestioned respect, or those 
high-spirited representatives of the people 
whose patriot firmness has been hitherto 
commanding all our sympathy and grat- 
itude, unless we could distinctly pro- 
nounce by what gentler means they could 
restrain the excesses of government. 
Thirteen parliaments had already met 
since the accession of Richard ; in all the 
same remonstrances had been repeated, 
and the same promises renewed. Subsi- 
dies, more frequent than in any former 
reign, had been granted for the supposed 
exigences of the war ; but this was no 
longer illuminated by those dazzling vic- 
tories, which give to fortune the mien 
of wisdom ; the coasts of England were 
perpetually ravaged, and her trade de- 
stroyed ; while the administration incur- 
red the suspicion of diverting to private 
uses that treasure which they so feebly 
and unsuccessfully applied to the public 
service. No voice of his people, until it 
spoke in thunder, would stop an intoxi- 
cated boy in the wasteful career of dissi- 
pation. He loved festivals and pageants, 
the prevailing folly of his time, with unu- 
sual frivolity ; and his ordinary living is 
represented as beyond comparison more 
showy and sumptuous than even that of 
his magnificent and chivalrous predeces- 
sor. Acts of parliament were no ade- 
quate barriers to his misgovernment. 
" Of what avail are statutes," says Wal- 
singham, " since the king with his privy 
council is wont to abolish what par- 
liament has just enacted 1"* The con- 
stant prayer of the commons in every 
session, that former statutes might be 
kept in force, is no slight presumption 
that they were not secure of being re- 
garded. It may be true, that Edward 
III.'s government had been full as arbi- 
trary, though not so unwise, as his grand- 
son's ; but this is the strongest argu- 
ment, that nothing less than an extraor- 
dinary remedy could presei-ve the still 
unstable liberties of England. 

The best plea that could be made for 
Richard was his inexperience, and the mis- 
guided suggestions of favourites. This, 
however, made it more necessary to re- 
move those false advisers, and to supply 
that inexperience. Unquestionably tlie 
choice of ministers is reposed in the sov- 
ereign ; a trust, like every other attribute 
of legitimate power, for the public good ; 
not, what no legitimate power can ever 
be, the instrument of selfishness or ca^ 

* Rot. Pari., p. 281 



Part III.] 



ENGLISH CONSTITUTION. 



387 



price. There is something more sacred 
than the prerogative, or even than the 
constitution ; the public weal, for which 
all powers are granted, and to which they 
must all be referred. For this public 
weal it is confessed to be sometimes ne- 
cessary to shake the possessor of the 
throne out of his seat ; could it never be 
permitted to suspend, though but indi- 
rectly and for a time, the positive exer- 
cise of misapplied prerogatives '.' He has 
learned in a very different school from 
myself, who denies to parliament at the 
present day a preventive as well as vin- 
dictive control over the administration 
of affairs ; a right of resisting, by those 
means which lie within its sphere, the 
appointment of unfit ministers. These 
means are now indirect ; they need not 
to be the less effectual, and they are 
certainly more salutary on that account. 
But we must not make our notions of the 
constitution, in its perfect symmetry of 
manhood, the measure of its infantine pro- 
portions, nor expect from a parliament 
just strugghng into life, and "pawing to 
get free its hinder parts," the regularity 
of definite and habitual power. 

It is assumed rather too lightly by 
some of those historians to whom I have 
alluded, that these commissioners, though 
but appointed for a twelvemonth, design- 
ed to retain longer, or would not in fact 
have surrendered their authority. There 
is certainly a danger in these delegations 
of pre-eminent trust ; but I think it more 
formidable in a republican form than 
under such a government as our own. 
The spirit of the people, the letter of the 
law, were both so decidedly monarchical, 
that no glaring attempt of the commis- 
sioners to keep the helm continually in 
their hands, though it had been in the 
king's name, would have had a fair prob- 
ability of success. And an oligarchy 
of fourteen persons, different in rank 
and profession, even if we should impute 
criminal designs to all of them, was ill 
calculated for permanent union. Indeed, 
the facility with which Richard reassu- 
med his full powers two years afterward, 
Avhen misconduct had rendered his cir- 
cumstances far more unfavourable, gives 
the corroboration of experience to this 
reasoning. Uy yielding to the will of 
his parliament, and to a temporary sus- 
pension of prerogative, this unfortunate 
prince might probably have reigned long 
and peacefully ; the contrary course of 
acting led eventually to his deposition 
and miserable death. 

Before the dissolution of parliament, 
Richard made a verbal protestation, that 
Bb2 



nothing done therein should be Answers of 
in prejudice of his rights ; a re- the judges 
servation not unusual when 'oR'chard's 

I , , ■ questions. 

any remarkable concession was 
made, but which could not decently be 
interpreted, whatever he might mean, as 
a dissent from the statute just passed. 
Some months had intervened, when the 
king, who had already released Suffolk 
from prison and restored him to his fa- 
vour, procured from the judges whom he 
had summoned to Nottingham a most 
convenient set of answers to questions 
concerning the late proceedings in par- 
liament. Tresihan and Belknap, chief 
justices of the King's Bench and Com- 
mon Pleas, with several other judges, 
gave it under their seals, that the late 
statute and commission were derogatory 
to the prerogative ; that all who procured 
it to be passed, or persuaded or compell- 
ed the king to consent to it, were guilty 
of treason ; that the king's business must 
be proceeded upon before any other in 
parliament; that he may put an end to 
the session at his pleasure ; that his min- 
isters cannot be impeached without his 
consent ; that any members of parlia- 
ment contravening the three last articles 
incur the penalties of treason, and espe- 
cially he who moved for the sentence of 
deposition against Edward II. to be read; 
and that the judgment against the Earl 
of Suffolk might be revoked as altogether 
erroneous. 

These answers, perhaps extorted by 
menaces, as all the judges ex- subsequent 
cept Tresilian protested before revolution, 
the next parliament, were for the most 
part servile and unconstitutional. The 
indignation which they excited, and the 
measures successfully taken to withstand 
the king's designs, belong to general his- 
tory ; but I shall pass slightly over that 
season of turbulence, which afforded no 
legitimate precedent to our constitutional 
annals. Of the five lords appellants as 
they were called, Glocester, Derby, Not- 
tmgham, Warwick, and Arundel, the three 
former, at least, have little claim to our 
esteem ; but in every age, it is the sophism 
of malignant and peevish men to traduce 
the cause of freedom itself, on account 
of the interested motives by which its 
ostensible advocates have frequently been 
actuated. The parliament, who had the 
country thoroughly with them, acted no 
doubt honestly, but with an inattention to 
the rules of law, culpable indeed, yet from 
which the most civihzed of their succes- 
sors, in the heat of passion and triumph, 
have scarcely been exempt. Whether 
all with whom they dealt severely, some 



388 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



of them apparently of good previous rep- 
utation, merited such punishment, is more 
than, upon uncertain evidence, a modern 
writer can profess to decide.* 

Notwithstanding the death or exile of 
all Richard's favourites, and the oath 
taken not only by parliament, but by 
every class of the people, to stand by 
the lords appellants, we find him, af- 
ter about a year, suddenly annihilating 
their pretensions, and snatching the reins 
again without obstruction. The secret 
cause of this event is among the many 
obscurities that attend the history of his 
I'eign. It was conducted with a spirit 
and activity which broke out two or three 
times in the course of his imprudent life ; 
but we may conjecture that he had the 
advantage of disunion among his ene- 
mies. For some years after this, the 
king's administration was prudent. The 
great seal, whicjj he took away from 
Archbishop Arundel, he gave to Wyke- 
ham, bishop of Winchester, another 
member of the reforming commission, 
but a man of great moderation and polit- 
ical experience. Some time after he re- 
stored the seal to Arundel, and reinstated 
the Duke of Glocester in the council. 
The Duke of Lancaster, who had been 
absent during the transactions of the 
tenth and eleventh years of the king, in 
prosecution of his Castilian war, formed 
a link between the parties, and seems to 
have maintained some share of public 
favour. 

There was now a more apparent har- 
mony between the court and 
monTbe^*'' ^^e parliament. It seems to 
tweenthe have been tacitly agreed that 
king and ^^gy should not interfere with 

parliament. , •', . , , i i i 

the knig s household expenses ; 
and they gratified him in a point where 
his honour had been most wounded, de- 
claring his prerogative to be as high and 
unimpaired as that of his predecessors, 
and repealing the pretended statute by 
virtue of which Edward 11. was said to 
have been deposed, f They were provi- 
dent enough, however, to grant condi- 
tional subsidies, to be levied only in case 
of a royal expedition against the enemy ; 
and several were accordingly remitted 
by proclamation, this condition not being 
fulfilled. Richard never ventured to re- 
call his favourites, though he testified his 
unabated affection for Vere by a pompous 



* The judgment against Simon de Burley, one 
of those who were executed on this occasion, upon 
impeachment of the commons, was reversed under 
Henry IV. ; a fair presumption of its injustice. — 
Rot. Pari., vol. iii., p. 464. 

t Rot. Pari., 14 R. II., p. 279. 15 R. II., p. 28C. 



funeral. Few complaints, unequivocally 
alfecting the ministry, were presented by 
the commons. In one parliament, the 
chancellor, treasurer, and council resign- 
ed their offices, submitting themselves to 
its judgment, in case any matter of ac- 
cusation should be alleged against them. 
The commons, after a day's deliberation, 
probably to make their approbation ap- 
pear more solemn, declared in full par- 
liament that nothing amiss had been 
found in the conduct of these ministers, 
and that they held them to have faithful- 
ly discharged their duties. The king re- 
instated them accordingly ; with a prot- 
estation that this should not be made a 
precedent, and that it was his right to 
change his servants at pleasure.* 

But this summer season was not to last 
for ever. Richard had but dis- pjg„j,iQ^ 
sembied with those concerned among some 
in the transactions of 1388, leading 
none of whom he could ever P*"^' 
forgive. These lords in lapse of time 
were divided among each other. The 
earls of Derby and Nottingham were 
brought into the king's interest. The 
Earl of Arundel came to an open breach 
with the Duke of Lancaster, whose par- 
don he was compelled to ask for an un- 
founded accusation in parliament.! Glo- 
cester's ungoverned ambition, elated by 
popularity, could not brook the ascend- 
ency of his brother Lancaster, who was 
much less odious to the king. He had 
constantly urged and defended the con- 
cession of Guienne to this prince, to be 
held for life, reserving only his liege hom- 
age to Richard as king of France ■,X a 
grant as unpopular among the natives 
of that country as it was derogatory to 
the crown ; but Lancaster was not much 
indebted to his brother for assistance, 
which was only given in order to dimin- 
ish his influence in England. The truce 
with France, and the king's French mar- 
riage, which Lancaster supported, were 
passionately opposed by Glocester. And 
the latter had given keener provocation, 
by speaking contemptuously of that mis- 
alliance withKatherine Swineford, which 
contaminated the blood of Plantagenet. 
To the parliament summoned in the 20th 
of Richard, one object of wiiich was to 
legitimate the Duke of Lancaster's ante- 
nuptial children by this lady, neither Glo- 
cester nor Arundel would repair. There 
passed in this assembly something re- 
markable, as it exhibits not only the ar- 
bitrary temper of the king, a point by no 

* Rot. Pari., 13 R. II., p. 258. 

+ Id., 17 R.II., p. 313. 

X Rymer, t. vii., p. 583, 659. 



Part III.] 



ENGLISH CONSTITUTION. 



389 



means doubtful, but the inefficiency of 
the commons to resist it, without support 
from political confederacies of the nobil- 
ity. The circumstances are thus related 
in the record. 

During the session, the king sent for 
Richard's the lords into parliament one 
prosecution aftemoon, and told them how 
of Haxey. j^g j-^^^j heard of certain articles 
of complaint made by the commons in 
conference with them a few days before, 
some of which appeared to the king 
against his royalty, estate, and liberty, 
and commanded the chancellor to inform 
him fully as to this. The chancellor 
accordingly related the whole matter, 
which consisted of four alleged grievan- 
ces; namely, that sheriffs andescheators, 
notwithstanding a statute, are continued 
in their offices beyond a year ;* that the 
Scottish marches were not well kept; 
that the statute against wearing great 
men's liveries was disregarded ; and, last- 
ly, that the excessive charges of the 
king's household ought to be diminished, 
arising from the multitude of bishops and 
of ladies who are there maintained at his 
cost. 

Upon this information the king de- 
clared to the lords, that through God's 
gift he is by lineal right of inheritance 
king of England, and will have the royal- 
ty and freedom of his crown, from which 
some of these articles derogate. The 
first petition, that sheriffs should never 
remain in office beyond a year, he re- 
jected ; but, passing hghtly over the rest, 
took most offence, that the commons, 
who are his lieges, should take on them- 
selves to make any ordinance respecting 
his royal person or household, or those 
whom he might please to have about him. 
He enjoined, therefore, the lords to de- 
clare plainly to the commons his pleas- 
ure in this matter ; and especially direct- 
ed the Duke of Lancaster to make the 
speaker give up the name of the person 
who presented a bill for this last article 
in the lower house. 

The commons were in no state to re- 
sist this unexpected promptitude of ac- 

» Hume has represented this as if the commons 
had petitioned for the contmuance of sheriffs be- 
yond a year, and grounds upon this mistake part 
of his defence of Richard II. (note to vol. ii., p. 270, 
4to. edit.) For this he refers to Cotton's Abridg- 
ment ; whether rightly or not I cannot say, being 
little acquainted with that inaccurate book, upon 
which it is unfortunate that Hume relied so much. 
The passage from Walsingham in the same note 
is also wholly perverted, as the reader will discov- 
er without further observation. An historian must 
be strangely warped, who quotes a passage expli- 
citly complaining .of illegal acts in order io infer 
that those very acts were legal. 



tion in the king. They surrendered the 
obnoxious bill, with its proposer, one 
Thomas Haxey, and with great humility 
made excuse, that they never designed to 
give offence to his majesty, nor to inter- 
fere with his household or attendants, 
knowing well that such things do not be- 
long to them, but to the king alone ; but 
merely to draw his attention, that he 
might act therein as should please him 
best. The king forgave these pitiful sup- 
pliants ; but Haxey was adjudged in par- 
hament to suffer death as a traitor. As, 
however, he was a clerk,* the Archbishop 
of Canterbury, at the head of the pre- 
lates, obtained of the king that his life 
might be spared, and that they might 
have the custody of his person ; protest- 
ing that this was not claimed by way of 
right, but merely of the king's grace. f 

This was an open defiance of parlia ■ 
ment, and a declaration of arbitrary pow- 
er. For it would be impossible to con 
tend, that after the repeated instances of 
control over public expenditure by the 
commons since the 50th of Edward HI., 
this principle was novel and unauthorized 
by the constitution ; or that the right of 
free speech demanded by them in every 
parliament was not a real and indisputa- 
ble privilege. The king, however, was 
completely successful, and hav- Arbitrary 
ing proved the feebleness of measures of 
the commons, fell next upon "i"*^'"?- 
those he more dreaded. By a skilful 
piece of treachery he seized the Duke 
of Glocester, and spread consternation 
among all his party. A parliament was 
summoned, in which the only struggle 
was to outdo the king's wishes, and thus 
to efface their former transgressions.^ 



* The church would perhaps have interfered in 
behalf of Haxey, if he had only received the ton- 
sure. But it seems that he was actually in orders ; 
for the record calls him Sir Thomas Haxey, a title 
at that time regularly given to the parson of a par- 
ish. If this be so, it is a remarkable authority for 
the clergy's capacity of sitting in parliament. 

t Rot. Pari, 20 R. II., p. 339. In Henry IV.'s 
first parliament, the commons petitioned for Has- 
ey's restoration, and truly say, that his sentence 
was en aneantissement des custumes de la com- 
mune, p. 434. His judgment was reversed by both 
houses, as having past de volonte du Roy Richard 
en contre droit, et la course quel avoit este devant 
en parlement, p. 4S0. There can be no doubt with 
any man who looks attentively at the passages 
relative to Haxey, that he was a member of par- 
liament ; though this was questioned a few years 
ago by the committee of the house of commons 
who made a report on the right of the clergy to be 
elected; a right which, lam inclined to believe, 
did exist down to the Reformation, as the grounds 
alleged for Nowell's expulsion in the first of Mary, 
besides this instance of Haxey, conspire to prove, 
though it has since been lost by disuse. 

t This assembly, if we may trust the anony- 



390 



EUROPE DURING THE MIDDLE AGES 



[Chap. VIII. 



Glocester, who had been murdered at 
Calais, was attainted after his death; 
Arundel was beheaded, his brother the 
Archbishop of Canterbury deposed and 
banished, Warwick and Cobham sent be- 
yond sea. The commission of the tenth, 
the proceedings in parliament of the 
eleventh year of the king, were annulled. 
The answers of the judges to the ques- 
tions put at Nottingham, which had been 
punished with death and exile, were pro- 
nounced by parliament to be just and le- 
gal. It was declared high treason to pro- 
cure the repeal of any judgment against 
persons therein impeached. Their issue 
male were disabled from ever sitting in 
parhament, or holding place in council. 
These violent ordinances, as if the pre- 
cedent they were then overturning had 
not shielded itself with the same sanc- 
tion, were sworn to by parliament upon 
the cross of Canterbury, and confirmed 
by a national oath, with the penalty of 
excommunication denounced against its 
infringers. Of those recorded to have 
bound themselves by this adjuration to 
Richard, far the greater part had touched 
the same relics for Glocester and Arun- 
del ten years before, and two years after- 
ward swore allegiance to Henry of Lan- 
caster.* 

In the fervour of prosecution this par- 
liament could hardly go beyond that 
whose acts they were annulling; and 
each is alike unworthy to be remembered 
in the way of precedent. But the leaders 
of the former, though vindictive and tur- 
bulent, had a concern for the public in- 
terest ; and after punishing their ene- 
mies, left the government upon its right 
foundation. In this all regard for liberty 
was extinct ; and the commons set the 
dangerous precedent of granting the king 
a subsidy upon wool during his life. This 
remarkable act of severity was accompa- 
nied by another, less unexampled, but, 
as it proved, of more ruinous tendency. 
The petitions of the commons not having 
been answered during the session, which 
they were always anxious to conclude, a 
commission was granted for twelve peers 
and six commoners to sit after the dissolu- 
tion, and " examine, answer, and fully 
determine as well all the said petitions, 
and the matters therein comprised, as all 
other matters and things moved in the 
king's presence, and all things incident 
thereto not yet determined, as shall seem 
best to them."f The " other matters" 

mous author of the life of Richard II., pubhshed 
by Hearne, was surrounded by the king's troops, 
p. 133. 
• Kot. Pari, 21 R. 11., p. 347. t W- D- 369. 



mentioned above Avere, I suppose, pri- 
vate petitions to the king's council in par- 
liament, which had been frequently de- 
spatched after a dissolution. For in the 
statute which establishes this commis- 
sion, 21 R. II., c. 16, no powers are com 
mittcd but those of examining petitions : 
which, if it does not confirm the charge 
afterward alleged against Richard of fal- 
sifying the parliament roll, must at least 
be considered as limiting and explaining 
the terms of the latter. Such a trust had 
been committed to some lords of the 
council eight years before, in very peace- 
ful times ; and it was even requested 
that the same might be done in future 
parliaments.* But it is obvious what a 
latitude this gave to a prevailing faction. 
These eighteen commissioners, or some 
of them (for there were who disliked the 
turn of affairs), usurped the full rights of 
the legislature, which undoubtedly were 
only delegated in respect of business al- 
ready commenced. t They imposed a 
perpetual oath on prelates and lords for 
all time to come, to be taken before ob- 
taining livery of their lands, that they 
would maintain the statutes and ordi- 
nances made by this parliament, or " af- 
terward by the lords and knights having 
power committed to them by the same." 
They declared it high treason to disobey 
their ordinances. They annulled the pa- 
tents of the dukes of Hereford and Nor- 
folk, and adjudged Henry Bowet, the for- 
mer's chaplain, who had advised him to 
petition for his inheritance, to the penal- 
ties of treason.^ And thus, having ob- 



* Rot. Pari, 13 R. II., p. 256. 

+ This proceeding was made one of the articles 
of charge against Richard in the following terms : 
Item, in parliamento ultimo celebrato apud Salo- 
piam, idem Rex proponens opprimere populum 
suum procuravit subtiliter et fecit concedi, quod 
potestas parliamenti de consensu omnium statuum 
regni sui remaneret apnd quasdam certas personas 
ad terminandum, dissoluto parliamento, certas pe- 
titiones in eodem parliamento porrectas protunc 
minimi expeditas. Cujus concessionis colore per- 
sonas sic deputatae processerunt ad alia generaliter 
parliamentum illud tangentia ; et hoc de volunlate 
regis ; in derogationem status parliamenti, et in 
magnum incommodum totius regni et perniciosum 
exempluin. Et ut super factis eorum hujusmodt 
aliquem colorem et auctoritatem viderentur habere, 
rex fecit rotulos parliamenti pro voto suo mutari et 
deleri, contra effectum consensionis prsedictaj.— 
Rot. Pari., 1 H. IV., vol. iii., p. 418. Whether the 
last accusation, of altering the parliamentary roll, 
be true or not, there is enough left in it to prove 
every thing 1 have asserted in the text. From this 
it IS sutliciently manifest how unfairly Carte and 
Hume have drawn a parallel between this self- 
deputed legislative commission, and that appointed 
by parliament to reform the administration eleve)i 
years before. 

t -Rot. Pari., 1 H. IV., vol. iii., p. 372, 385 



Part III.] 



ENGLISH CONSTITUTION. 



391 



taiiied a revenue for life, and the power 
of parliament being notoriously usurped 
by a knot of his creatures, the king was 
little hkely to meet his people again, and 
became as truly absolute as his ambition 
could require. 

It had been necessary for this purpose 
Quarrel to subjugate the ancient nobility, 
of ihe For the English constitution gave 
Hereror°d t'^^'" ^^^^^ paramount rights, that 
and Nor- it was impossible either to make 
»°"'- them surrender their country's 
freedom, or to destroy it without their 
consent. But several of the chief men 
had fallen, or were involved, with the 
party of Glocester. Two who, having 
once belonged to it, had lately plunged 
into the depths of infamy to ruin their 
former friends, were still perfectly ob- 
noxious to the king, who never forgave 
their original sin. These two, Henry of 
Bolingbroke, earl of Derby, and Mow- 
bray, earl of Nottingham, now dukes of 
Hereford and Norfolk, the most power- 
ful of the remaining nobility, were, by a 
singular conjuncture, thrown, as it were, 
at the king's feet. Of the political mys- 
teries which this reign affords, none is 
more inexplicable than the quarrel of 
these peers. In the parliament at Shrews- 
bury in 1398, Hereford was called upon 
by the king to relate what had passed 
between the Duke of Norfolk and him- 
self in slander of his majesty. He de- 
tailed a pretty long and not improbable 
conversation, in which Norfolk had as- 
serted the king's intention of destroying 
them both, for their old offence in im- 
peaching his ministers. Norfolk had 
only to deny the charge, and throw his 
gauntlet at the accuser. It was referred 
to the eighteen commissioners who sat 
after the dissolution, and a trial by com- 
bat was awarded. But when this, after 
many delays, was about to take place at 
Coventry, Richard interfered, and settled 
the dispute by condemning Hereford to 
banishment for ten years, and Norfolk 
for life. This strange determination, 
which treated both as guilty where onlj' 
one could be so, seems to admit no other 
solution than the king's desire to rid 
himself of two peers whom he feared 
and hated at a blow. But it is difficult 
to understand by what means he drew 
the crafty Bolingbroke into his snare.* 



* Besides the contemporary historians, we may 
read a full narrative of these proceedings in the 
rolls of parliament, vol. iii., p. 382. It appears that 
Mowbray was the most offending party ; since, in- 
dependently of Hereford's accusation, he is char- 
ged with openly maintaining the appeals made in 
the false parliament of the eleventh of the king. 
But the banishment of his accuser was wholly ua- 



However this might have been, he now 
threw away all appearance of moderate 
government. The indignities he had suf- 
fered in the eleventh year of his reign 
were still at his heart, a d^esire to re- 
venge which seems to have been the 
main spring of his conduct. Though a 
general pardon of those proceedings had 
been granted, not only at the time, but 
in his own last parliament, he made use 
of them as a pretence to extort money 
from seventeen counties, to whom he 
imputed a share in the rebellion. He 
compelled men to confess, under their 
seals, that they had been guilty of trea- 
son, and to give blank obligations, which 
his officers filled up with large sums.* 
Upon the death of the Duke of Lancas- 
ter, who had passively complied through- 
out all these transactions, Richard re- 
fused livery of his inheritance to Here- 
ford, whose exile implied no crime, and 
who had letters patent enabhng him to 
make his attorney for that purpose du- 
ring its continuance. In short, his gov- 
ernment for nearly two years was Necessity 
altogether tyrannical ; and, upon for depo- 
the same principles that cost '^'"s him. 
James II. his throne, it was unquestion- 
ably far more necessary, unless our fa- 
thers would have abandoned all thought 
of liberty, to expel Richard II. Far be it 
from us to extenuate the treachery of 
the Percies towards this unhappy prince, 
or the cruel circumstances of his death, 
or in any way to extol either his succes- 
sor or the chief men of that time, most 
of whom were ambitious and faithless ; 
but after such long experience of the 
king's arbitrary, dissembling, and revenge- 
ful temper, I see no other safe course in 
the actual state of the constitution than 
what the nation concurred in pursuing. 
The reign of Richard II. is, in a consti- 
tutional light, the most interesting part 
of our earlier history, and it has been 
the most imperfectly written. Some 
have misrepresented the truth through 
prejudice, and others through careless- 
ness. It is only to be understood, and 
indeed there are great difficulties in the 
way of understanding it at all, by a peru- 
sal of the rolls of parliament, with some 
assistance from the contemporary histo- 



justifiable by any motives that we can discover. 
It is strange that Carte should express surprise at 
the sentence upon the Duke of Norfolk, while he 
seems to consider that upon Hereford as very 
equitable. But he viewed the whole of this reign, 
and of those that ensued, with the jaundiced eye 
of Jacobitism. 

* Kot. Pari., 1 H. IV., p. 420, 426. Walsing 
ham, p. 353, 357. Otterburn, p. 199. Vita Ric 
, lL,o H? 



392 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



rians, Walsingham, Knyghton, the anony- 
mous biographer published by Hearne, 
and Froissart. These, I must remark, 
except occasionally the last, are ex- 
tremely hostile to Richard ; and although 
we are far from being bound to acqui- 
esce in their opinions, it is at least un- 
warrantable in modern writers to sprinkle 
their margins with references to such 
authority in support of positions deci- 
dedly opposite.* 

The revolution which elevated Henry 
Circumstan- IV. to the throne was certainly 
ces attend- gQ faj- accomplished by force, 

mg Henry >! . ^i, i • ^ • "^ *• x 

iv.'s acces- that the kmg was m captivity, 
sion. and those who might still ad- 

here to him in no condition to support 
his authority. But the sincere concur- 
rence v/hich most of the prelates and 
nobility, with the mass of the people, 
gave to changes that could not have 
been otherwise effected by one so un- 
provided with foreign support as Henry, 
proves this revolution to have beeir, if 
not an indispensable, yet a national act, 
and should prevent our considering the 
Lancastrian kings as usurpers of the 
throne. Nothing indeed looks so much 
like usurpation in the whole transaction 
as Henry's remarkable challenge of the 
crown, insinuating, though not avowing, 
as Hume has justly animadverted upon 
it, a false and ridiculous title by right 
line of descent, and one equally unwar- 
rantable by conquest. The course of 
proceedings is worthy of notice. As 
the renunciation of Richard might well 
pass for the effect of compulsion, there 
was a strong reason for propping up its 
instability by a solemn deposition from 
the throne, founded upon specific charges 
of misgovernment. Again, as the right 
of dethroning a monarch was nowhere 
found in the law, it was equally requisite 
to support this assumption of power by 
an actual abdication. But as neither one 
nor the other filled the Duke of Lancas- 
ter's wishes, who was not contented 
with owing a crown to election, nor 
seemed altogether to account for the ex- 
clusion of the house of March, he devi- 
sed this claim, which was preferred in 
the vacancy of the throne, Richard's ces- 
sion having been read and approved in 
parliament, and the sentence of depo- 
sition, " out of abundant caution, and to 



* It IS fair to observe, that Froissart's testimony 
makes most in favour of the king, or rather against 
his enemies, where it is most valuable, that is, in 
his account of what he heard in the English court 
in 1395, 1. iv., c. 62, where he gives a very differ- 
ent character of the Duke of Glocester. in gen- 
eral, this writer is ill informed of English affairs, 
and undeserving to be quoted as an authority. 



remove all scruple," solemnly passed by 
seven commissioners appointed out of 
the several estates. " After which chal- 
lenge and claim," says the record, "the 
lords spiritual and temporal, and all the 
estates there present, being asked sep- 
arately and together what they thought 
of the said challenge and claim, the said 
estates, with the whole people, without 
any difficulty or delay, consented that 
the said duke should reign over them."* 
The claim of Henry, as opposed to that 
of the Earl of March, was indeed ridicu- 
lous ; but it is by no means evident that, 
in such cases of extreme urgency as 
leave no security for the common weal 
but the deposition of a reigning prince, 
there rests any positive obligation upon 
the estates of the realm to fill his place 
with the nearest heir. A revolution of 
this kind seems rather to defeat and 
confound all prior titles, though in the 
new settlement it will commonly be pru- 
dent, as well as equitable, to treat them 
with some regard. Were this otherwise, 
it would be hard to say why William 
III. reigned to the exclusion of Anne, or 
even of the Pretender, who had surely 
committed no offence at that time ; or 
why (if such indeed be the true con- 
struction of the Act of Settlement) the 
more distant branches of the royal stock, 
descendants of Henry VII. and earlier 
kings, have been cut off from their hope 
of succession by the restriction to the 
heirs of the Princess Sophia. 

In this revolution of 1399 there was as 
remarkable an attention shown to the for- 
malities of the constitution, allowance 
made for the men and the times, as in 
that of 1688. The parliament was not 
opened by commission; no one took the 
office of president ; the commons did not 
adjourn to their own chamber ; they 
chose no speaker ; the name of parlia- 
ment was not taken, but that only of es- 
tates of the realm. But as it would have 
been a violation of constitutional princi- 
ples to assume a parliamentary character 
without the king's commission, though 
summoned by his writ, so it was still 
more essential to limit their exercise of 
power to the necessity of circumstances. 
Upon the cession of the king, as upon his 
death, the parliament was no more : its 
existence, as the council of the sover- 
eign, being dependant upon his will. The 
actual convention summoned by the ^vrits 
of Richard could not legally become the 
parliament of Henry ; and the validity of 
a statute declaring it to be such would 



* Rot. Pari, p. 423. 



Part III.j 



ENGLISH CONSTITUTION. 



393 



probably have been questionable in that 
age, when the power of statutes to alter 
the original principles of the common 
law was by no means so thoroughly rec- 
ognised as at the Restoration and Revo- 
lution. Yet Henry was too well pleased 
with his friends to part with them so 
readily ; and he had much to effect be- 
fore the fervour of their spirits should 
abate. Hence an expedient was devised 
of issuing writs for a new parliament, re- 
turnable in six days. These neither were 
nor could be complied with ; but the same 
members as had deposed Richard sat in 
the new parliament, which was regularly 
opened by Henry's commissioner, as if 
they had been duly elected.* In this 
contrivance, more than in all the rest, we 
may trace the hand of lawyers. 

If we look back from the accession of 
Retrospect Henry IV. to that of his prede- 
"'" 'he prog- cesser, the constitutional au- 
consiuiition thority of the house of com- 
under Ricu- nious will be perceived to have 
"'"'' "■ made surprising progress du- 

ring the course of twenty-two years. Of 
the three capital points in contest while 
Edward reigned, that money could not 
be levied, or laws enacted, without the 
commons' consent, and that the adminis- 
tration of government was subject to 
their inspection and control, the first was 
absolutely decided in their favour, the 
second was at least perfectly admitted in 
principle, and the last was confirmed by 
frequent exercise. The commons had 
acquired two additional engines of im- 
mense eflficiency ; one, the right of di- 
recting the application of subsidies, and 
calling accountants before them ; the 
Other, that of impeaching the king's min- 
isters for misconduct. All these vigor- 
ous shoots of liberty throve more and 
Its advances "^ore Under the three kings of 
under the the house of Lancaster, and 
Lancaster ^^^^^ such Strength and nour- 
ishment from the generous 
heart of England, that in after times and 
in a less prosperous season, though 
checked and obstructed in their growth, 
neither the blasts of arbitrary power 
could break them off, nor the mildew of 
servile opinion cause them to wither. I 
shall trace the progress of parliament till 
the civil wars of York and Lancaster ; 1, 
in maintaining the exclusive right of tax- 
ation ; 2, in directing and checking the 
public expenditure ; 3, in making sup- 

* If proof could be required of any thing so self- 
evident as that these assemblies consisted of ex- 
actly the same persons, it may be foimd in their 
writs of expenses, as published by Prynne, 4th 
Register, p. 450, 



plies depend on the redress of grievan- 
ces ; 4, in securing the people against il- 
legal ordinances and interpolations of the 
statutes ; 5, in controlling the royal ad- 
ministration; 6, in punishing bad minis- 
ters ; and lastly, in establishing their own 
immunities and privileges. 

1. The pretence of levying money 
without consent of parliament expired 
with Edward III., who had asserted it, as 
we have seen, in the very last year of 
his reign. A great council of lords and 
prelates, summoned in the second year 
of his successor, declared that they could 
advise no remedy for the king's necessi- 
ties, without laying taxes on the people, 
which could only be granted in parlia- 
ment.* Nor was Richard ever accused 
of illegal tallages, the frequent theme of 
remonstrance under Edward, unless we 
may conjecture that this charge is im- 
plied in an act (II R. II., c. 9), which an- 
nuls yi impositions on wool and leather, 
without consent of parliament, if any 
there be.\ Doubtless his iniiocence in this 
respect was the effect of weakness ; and 
if the revolution of 1399 had not put an 
end to his newly-acquired despotism, this, 
like every other right of his people, 
would have been swept away. A less 
palpable means of evading the consent 
of the commons was by the extortion of 
loans, and harassing those who refused 
to pay by summonses before the council. 
These loans, the frequent resource of 
arbitrary sovereigns in later times, are 
first complained of in an early parliament 
of Richard II. ; and a petition is granted 
that no man shall be compelled to lend the 
king money.J But how little this was 
regarded we may infer from a writ di- 
rected in 1386 to some persons in Boston, 
enjoining them to assess every person 
who had goods and chattels to the amount 
of twenty pounds, in his proportion of 
two hundred pounds, which the town had 
promised to lend the king; and giving 
an assurance that this shall be deducted 
from the next subsidy to be granted by 
parliament. Among other extraordinary 
parts of this letter is a menace of forfeit- 
ing life, limbs, and property, held out 
against such as should not obey these 
commissioners.^ After his triumph over 



* 2 R. II., p. 56. 

t It is positively laid down by the assertors of 
civil liberty in the great case of impositions 
(Howell's State Trials, vol. ii., p. 44,"), 507), that 
no precedents for arbitrary taxation of exports or 
imports occur from the accession of Richard II. to 
the reign of Mary. 

X 2 R. II., p. 62. This did not find its way to the 
statute book. 

(j Rymer, t. vii., p. 544. 



394 



EUROPE DURING THE MIDDLE AGES 



[Chap. VIH. 



the popular party towards the end of his 
reign, he obtained large sums in this 
way. 

Under the Lancastrian kings, there is 
much less- appearance of raising money 
in an unparliamentary course. Henry 
IV. obtained an aid from a great council 
in the year 1400 ; but they did not pre- 
tend to charge any besides themselves ; 
though it seems that some towns after- 
ward gave the king a contribution.* A 
few years afterward, he directs the sher- 
iffs to call on the richest men in their 
counties to advance the money voted by 
parliament. This, if any compulsion was 
threatened, is an instance of overstrained 
prerogative, though consonant to the 
practice of the late reign. f There is, 
however, an instance of very arbitrary 
conduct with respect to a grant of money 
in the minority of Henry VI. A subsidy 
had been granted by parliament upon 
goods imported, under certain restrictions 
in favour of the merchants, with a provi- 
sion, that if these conditions be not ob- 
served on the king's part, then the grant 
should be void and of no effect.J But 
an entry is made on the roll of the next 
parliament, that "whereas some disputes 
have arisen about the grant of the last 
subsidy ; it is declared by the Duke of 
Bedford and other lords in parliament, 
with advice of the judges and others learn- 
ed in the law, that the said subsidy was at 
all events to be collected and levied for 
the king's use ; notwithstanding any con- 
ditions in the grant of the said subsidy 
contained."'^ The commons, however, 
in making the grant of a fresh subsidy in 
this parliament, renewed their former 
conditions, with the addition of another, 
that " it ne no part thereof be beset ne 
dispensed to no other use, but only in 
and for the defense of the said roialme."|l 

2. The right of granting supplies would 
Appropri- have been very incomplete, had 
at ion of it not been accompanied with 
supplies. ^^^^ ^f directing their application. 
This principle of appropriating public 
moneys began, as we have seen, in the 
minority of Richard ; and was among 
the best fruits of that period. It was 
steadily maintained under the new dy- 
nasty. The parliament of 6 H. IV. 
granted two fifteenths and two tenths, 
vvitli a tax on skins and wool, on con- 



* Carte, vol. ii., p. 640. Sir M. Hale observes 
that he tinds no complaints of illegal impositions 
under the kings of the house of Lancaster. — Har- 
grave's Tracts, vol. i., p. 184. 

t Rymer, t. vhi., p. 412, 488. 

t Rot. Pari., vol. iv., p. 216. 

I Id., p. 301. II Id., p. 302 



dition that it should be expended in 
the defence of the kingdom, and not 
otherwise, as Thomas Lord Furnival 
and Sir John Pelham, ordained treasurers 
of war for this parliament, to receive 
the said subsidies, shall account and an- 
swer to the commons at the next parlia- 
ment. These treasurers were sworn in 
parliament to execute their trust.* A 
similar precaution was adopted in the 
next session. t 

3. The commons made a bold attempt 
in the second year of Henry Attempt to 
IV. to give the strongest securi- makesup- 
ty to their claims of redress, {,1,^ retfresa 
by inverting the usual course of gnev- 
of parliamentary proceedings, ""^es. 
It was usual to answer their petitions 
on the last day of the session, which 
put an end to all further discussion 
upon them, and prevented their making 
the redress of grievances a necessary 
condition of supply. They now request- 
ed that an answer might be given before 
they made their grant of subsidy. This 
was one of the articles which Richard 
H.'s judges had declared it high treason 
to attempt. Henry was not inclined to 
make a concession which would virtual- 
ly have removed the chief impediment 
to the ascendency of parliament. He 
first said that he would consult with the 
lords, and answer according to their ad- 
vice. On the last day of the session 
the commons were informed, that " it had 
never been known, in the time of his an- 
cestors, that they should have their peti- 
tions answered before they had done all 
their business in parliament, whether of 
granting money or any other concern ; 
wherefore the king will not alter the 
good customs and usages of ancient 
times."! 

Notwithstanding the just views these 
pariiaments appear generally to have en- 
tertained of their power over the public 
purse, that of the third of Henry V. fol- 
lowed a precedent from the worst times 
of Richard II., by granting the king a 
subsidy on wool and leather during his 
life.^ This, an historian tells us, Henry 
IV. had vainly laboured to obtain ;|| but 
the taking of Harfleur intoxicated the 
English with new dreams of conquest in 
France, which their good sense and con- 
stitutional jealousy were not firm enough 
to resist. The continued expenses of the 
war, however, prevented this grant from 
becoming so dangerous as it might have 
been in a season of tranquillity. Henry 



* Rot. Pari., vol. iii., p. 546. 

+ Id., p. 568. t Id.i P- 453. 

(f Id., vol. IV., p. 63. jl Walsingham, p. 379. 



Part III.] 



ENGLISH CONSTITUTION. 



395 



v., like his father, convoked parliament 
almost in every year of his reign. 

4. It had long been out of all question, 
Legislative that the legislature consisted of 
rights of i^Q king, lords, and commons; 

the com- . ="" , ' ., ' 

mons es- Or, m Stricter language, that the 
tabiished. king could not make or repeal 
statutes 'without the consent of parlia- 
ment. But this fundamental maxim was 
still frequently defeated by various acts 
of evasion or violence ; which, though 
protested against as illegal, it was a diffi- 
cult task to prevent. The king some- 
times exerted a power of suspending the 
observance of statutes ; as in the ninth 
of Richard II., when a petition that all 
statutes might be confirmed is granted 
with an exception as to one passed in 
the last parliament, forbidding the judges 
to take fees, or give counsel in cases 
■where the king was a party; which, 
" because it was too severe, and needs 
declaration, the king would have of no 
effect till it should be declared in parlia- 
ment."* The apprehension of this dis- 
pensing prerogative and sense of its ille- 
gality are manifested by the wary terms 
wherein the commons, in one of Rich- 
ard's parliaments, " assent that the king 
made such sufferance respecting the 
statute of provisors as shall seem rea- 
sonable to him, so that the said statute 
be not repealed ; and moreover that the 
commons may disagree thereto at the 
next parliament, and resort to the stat- 
ute ;" with a protestation that this as- 
sent, which is a novelty, and never done 
before, shall not be drawn into prece- 
dent ; praying the king that this pro- 
testation may be entered on the roll of 
parliament.!' A petition in one of Henry 
IV. 's parliaments, to limit the number 
of attorneys, and forbid filazers and pro- 
thonotaries from practising, having been 
answered favourably as to the first point, 
we find a marginal entry in the roll that 
the prince and council had respited the 
execution of this act.| 

Tlie dispensing power, as exercised in 
Dispensing favour of individuals, is quite 
power of " of a different character from 
the crown, ^j^jg general suspension of stat- 
utes, but indirectly weakens the sov- 
ereignty of the iegHslature. This pow- 
er was exerted, and even recognised, 
throughout all the reigns of the Planta- 
genets. In the first of Henry V. the com- 



* Walsingham, p. 210. Ruffhead observes in 
the margin upon this statute 8 R. II., c. 3, that it 
is repealed, but does not take notice what sort of 
repeal it had. 

t 15 R. II., p. 285. See too 16 R. II., p. 301, 
where the same power is renewed in H. IV.'s 
parliiments. t 13 H. IV., p. 643. 



mons pray, that the statute for driving 
aliens out of the kingdom be executed. 
The king assents, saving his prerogative, 
and his right of dispensing w ith it when 
he pleased. To which the commons 
replied, that their intention was never 
otherwise, nor, by God's help, ever 
should be. At the same time one Rees 
ap Thomas petitions the king to modify 
or dispense with the statute prohibiting 
Welshmen from purchasing lands in 
England, or the English towns in Wales, 
which the king grants. In the same par- 
liament the commons pray that no grant 
or protection be made to any one in con- 
travention of the statute of provisors, 
saving the king's prerogative. He mere- 
ly answers, " Let the statutes be observ- 
ed :" evading any allusion to his dispen- 
sing power.* 

It has been observed under the reign 
of Edward III., that the practice of leav- 
ing statutes to be drawn up by the 
judges, from the petition and answer 
jointly, after a dissolution of parliament, 
presented an opportunity of falsifying 
the intention of the legislature, whereof 
advantage was often taken. Some very 
remarkable instances of this fraud oc- 
curred in the succeeding reigns. 

An ordinance was put upon the roll of 
parliament, in the fifth of Richard II., 
empowering sheriffs of counties to arrest 
preachers of heresy and their abetters, 
and detain them in prison until they 
should justify themselves before the 
church. This was introduced into the 
statutes of the year; but the assent of 
lords and commons is not expressed. In 
the next parliament, the commons, reci- 
ting this ordinance, declare that it was 
never assented to or granted by them, 
but what had been proposed in this mat- 
ter was without their concurrence (that 
is, as I conceive, had been rejected by 
them), and pray that this statute be an- 
nulled, for it was never their intent to 
bind themselves or their descendants to 
the bishops more than their ancestors 
had been bound in times past. The king 
returned an answer agreeing to this pe- 
tition. Nevertheless the pretended stat- 
ute was untouched, and remains still 
among our laws -.j unrepealed, except 



♦ Rot. Pari., V. 4 H. V., p. 6, 9. 

t 5 R. II., Stat. 2, c. 5 ; Rot. Pari., 6 R. II., p. 
141. Some other instances of the commons at- 
tempting to prevent these unfair practices are ad- 
duced by Ruffhead in his preface to the Statutes, 
and in Prynne's preface to Cotton's Abridgment 
of the Records. The act 13 R. II., stat. 1, c. 15, 
that the kmg's caslie.s and ]ails which had beea 
separated from the body of the adjoining counties, 
should be reuuted to them, is not founded upon 



396 



EUROPE DURING THE MIDDLE AGES. 



LChap. VIII. 



by desuetude, and by inference from the 
acts of much later times. 

This commendable reluctance of the 
commons to let the clergy forge chains 
for them produced, as there is much ap- 
pearance, a similar violation of their le- 
gislative rights in the next reign. The 
statute against heresy in the second of 
Henry IV. is not grounded upon any pe- 
tition of the commons, but only upon one 
of the clergy. It is said to be enacted 
by consent of the lords, but no notice is 
taken of the lower house in the parlia- 
ment roll, though the statute reciting the 
petition asserts the commons to have 
joined in it.* The petition and the stat- 
ute are both in Latin, which is unusual 
in the laws of this time. In a subse- 
quent petition of the commons, this act 
is styled " the statute made in the second 
vear of your majesty's reign, at the re- 
quest of the prelates and clergy of your 
kingdom ;" which affords a presumption 
that it had no regular assent of parlia- 
ment.! And the spirit of the commons 
during this whole reign being remark- 
ably hostile to the church, it would have 
been hardly possible to obtain their con- 
sent to so penal a law against heresy. 
Several of their petitions seem designed 
indirectly to weaken its efficacy. J 

These infringements of their most es- 
sential right were resisted by the com- 
mons in various ways, according to the 
measure of their power. In the fifth of 
Richard II., they request the lords to let 
them see a certain ordinance before it is 
engrossed.'^ At another time they pro- 
cured some of their own members, as 
well as peers, to be present at engrossing 
the roll. At length they spoke out une- 
quivocally in a memorable petition, which, 
besides its intrinsic importance, is de- 
serving of notice as the earliest instance 
in which the house of commons adopted 



any petition that appears on the roll ; and probably 
by making search other instances equally flagrant 
might be discovered. 

* There had been, however, a petition of the 
commons on the same subject, expressed in very 
general terms, on which this terrible superstruc- 
tuie might artfully be raised, p. 474. 

+ P, 626. 

j We find a remarkable petition in 8 H. IV"., 
professedly aimed against the Lollards, but in- 
tended, as I strongly suspect, in their favour. It 
condemns persons preachmg against the Catholic 
faith or sacraments to imprisonment till the ne,xt 
parliament, where they were to abide such judg- 
ment as should be rendered by the kuig and peers of 
the realm. This seems to supersede the burning 
statute of 2 H. IV., and the spiritual cognizance 
of heresy.— Rot. Pari., p. 583. See too p. 626. 
The petition was expressly granted ; but the cler- 
gy, I suppose, prevented its appearing on the stat- 
ttte-roU. (} Rot. Pari., vol. iii., p. 102. 



the English language. I shall present its 
venerable orthography without change. 

" Oure soverain lord, youre humble and 
trewe lieges that ben come for the co- 
mune of youre lond bysechyn onto youre 
rizt riztwesnesse. That so as hit hath 
ever be thair libte and fredom, that thar 
sholde no statut no lawe be made offlasse 
than they yaf therto their assent : con- 
sideringe that the comune of youre lond, 
the whiche that is, and ever hath be, a 
membre of youre parlemente, ben as well 
assenters as peticioners, that fro this 
tyme foreward, by compleynte of the 
comune of any myschief axknyge reme- 
die by mouthe of their speker for the co- 
mune, other ellys by petition writen, that 
ther never be no lawe made theruppon, 
and engrossed as statut and lawe, nother 
by addicions, nother by diminucions, by 
no manner of terme ne termes, the whiche 
that sholde chaunge the sentence, and the 
entente axked by the speker moutlie, or 
the petitions beforesaid yeven up yn wri- 
tyng by the manere forsaid, withoute as- 
sent of the forsaid comune. Consider- 
inge oure soverain lord, that it is not in 
no wyse the entente of youre comunes, 
zif yet be so that they axke you by spek- 
yng, or by writyng, two thynges or three, 
or as manye as theym lust : But that ever 
it stande in the fredom of youre hie re- 
galie, to graunte whiche of thoo that you 
lust, and to werune the remanent. 

" The kyng of his grace especial graunt- 
eth that fro hensforth nothyng be enacted 
to the peticions of his comune, that be 
contrarie of hir askyng, wharby ihey 
shuld be bounde withoute their assent. 
Savyng alwey to our liege lord his real 
prerogatif, to graunte and denye what 
him lust of their petitions and askynges 
aforesaide."* 

Notwithstanding the fulness of this as- 
sent to so important a petition, we find 
no vestige of either among the statutes, 
and the whole transaction is unnoticed 
by those historians who have not looked 
into our original records. If the com- 
pilers of the statute-roll were able to keep 
out of it the very provision that was in- 
tended to check their fraudulent machi- 
nations, it was in vain to hope for redress 
without altering the established practice 
in this respect ; and, indeed, where there 
was no design to falsify the roll, it was 

* Rot. Pari., vol. iv., p. 22. It is curious that the 
authors of the Parliamentary history say that the 
roll of this parliament is lost, and consequently 
suppress altogether this important petition. Instead 
of which they give, as their fashion is, impertiiient 
speeches out of HoUngshed, which are certainly 
not genuine, and would be of no value if they were 
I so. 



Part III.] 



ENGLISH CONSTITUTIOJV. 



397 



impossible to draw up statutes which 
should be in truth the acts of the whole 
legislature, so long as the king contin- 
ued to grant petitions in part, and to 
ingraft new matter upon them. Such 
was still the case, till the commons hit 
upon an effectual expedient for screen- 
ing themselves against these encroach- 
ments, which has lasted without altera- 
tion to the present day. This was the 
introduction of complete statutes, under 
the name of bills, instead of the old pe- 
titions ; and these, containing the royal 
assent, and the whole form of a law, it 
became, though not quite immediately,* 
a constant principle, that the king must 
admit or reject them without qualitication. 
This alteration, which wrought an ex- 
traordinary effect on the character of 
our constitution, was gradually introdu- 
ced in Henry \ l.'s reign, j 

From the first years of Henry V., 
though not, I think, earlier, the com- 
., mons began to concern themselves with 
the petitions of individuals to the lords 
or council. The nature of the jurisdic- 
tion exercised by the latter will be treat- 
ed more fully hereafter. It is only ne- 
cessary to mention in this place, that 
many of the requests preferred to them 
were such as could not be granted with- 
out transcending the boundaries of law. 
A just inquietude as to the encroach- 
ments of the king's council had long been 
manifested by the commons ; and, find- 

* Henry VI. and Edward IV. in some cases pass- 
ed bills with sundry provisions annexed by them- 
selves. Thus the act for resumption of grants, 4 
E. IV., was encumbered with 289 clauses in fa- 
vour of so many persons whom the king meant to 
exempt from its operation ; and the same was done 
in other acts of the same description. — Rot. Pari., 
vol. v., p. 517. 

t The variations of each statute, as now printed, 
from the parliamentary roll, whether in form or 
substance, are noticed in Cotton's Abridgment. It 
may be worth while to consult the preface to Ruff- 
head's edition of the Statutes, where this subject 
is treated at some length. 

Perhaps the triple division of our legislature may 
be dated from this innovation. For as it is impos- 
sible to deny that, while the king promulgated a 
statute founded upon a mere petition, he was him- 
self the real legislator, so I think it is equally fair 
to assert, notwithstanding the formal preamble of 
our statutes, that laws brought into either house 
of parliament in a perfect shape, and receiving first 
the assent of lords and commons, and finally that 
of the king, who has no power to modify them, 
must be deemed to proceed, and derive their effica- 
cy, from the joint concurrence of all the three. It 
is said indeed at a much earlier time, that le ley de 
la terre est fait en parlement par le roi, et les seig- 
neurs espirituels et temporels, et tout la commu- 
naute du royaume. — Rot. Pari., vol. iii., p. 293. 
But this I must allow was in the violent session 
of 11 Ric. II., the constitutional authority of which 
is not to be highly prized. 



ing remonstrances ineffectual, they took 
measures for preventing such usurpations 
of legislative power, by introducing their 
own consent to private petitions. These 
were now presented by the hands of the 
commons, and in very many instances 
passed in the form of statutes with the 
express assent of all parts of the legisla- 
ture. Such was the origin of private 
bills, which occupy the greater part of 
the rolls in Henry V. and VI. 's parlia- 
ment. The commons once made an in- 
effectual endeavour to have their consent 
to all petitions presented to the council 
in parliament rendered necessary by law ; 
if I rightly apprehend the meaning of the 
roll in this place, which seems obscure 
or corrupt.* 

5. If the strength of the commons had 
lain merely in the weakness interference 
of the crown, it might be in- of parliament 

• wiin til© roV" 

ferred that such harassing in- ai expendi- 
terference with the adminis- ture. 
tration of affiiirs, as the youthful and friv- 
olous Richard was compelled to endure, 
would have been sternly repelled by his 
experienced successor. But, on the con- 
trary, the spirit of Richard might have 
rejoiced to see that his mortal enemy 
suffered as hard usage at the hands of 
parliament as himself. After a few years, 
the government of Henry became ex» 
tremely unpopular. Perhaps his dissen- 
sion with the great family of Percy, which 
had placed him on the throne, and was 
regarded with partiality by the people,! 
chiefly contributed to this alienation of 
their attachment. The commons re- 
quested, in the fifth of his reign, that cer- 
tain persons might be removed from the 
court ; the lords concurred in displacing 
four of these, one being the king's con- 
fessor. Henry came down to parliament 
and excused these four persons, as know- 
ing no special cause Avhy they should be 
removed ; yet, well understanding that 
what the lords and commons should or- 
dain would be for his and his kingdom's 
interest, and therefore anxious to con- 
form himself to their wishes, consented 
to the said ordinance, and charged the 
persons in question to leave his palace ; 
adding that he would do as much by any 
other about his person whom he should 
find to have incurred the ill affection of 
his people. J It was in the same session 
that the Archbishop of Canterbury was 
commanded to declare before the lords 

* 8 H. v., vol. iv., p. 127. 

j The house of commons thanked the king for 
pardoning Northumberland, whom, as it proved, 
he hadjust cause to suspect. — 5 H. IV., p. 525. 

t 5 H. IV., p. 595. 



398 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



the king's intentions respecting his ad- 
ministration ; allowing that some things 
had been done amiss in his court and 
household ; and, therefore, wishing to 
conform to the will of God and laws of 
the land, protested that he would let in fu- 
ture no letters of signet or privy seal go in 
disturbance of law, beseeched the lords to 
put his household in order, so that every 
one might be paid, and declared that the 
money granted by the commons for the 
war should be received by treasurers ap- 
pointed in parliament, and disbursed by 
them for no other purpose, unless in case 
of rebellion. At the request of the com- 
mons, he named the members of his pri- 
vy council ; and did the same, with some 
variation of persons, two years afterward. 
These, though not nominated with the 
express consent, seem to have had the 
approbation of the commons ; for a sub- 
sidy is granted in 7 H. IV., among other 
causes, for " the great trust that the 
commons have in the lords lately chosen, 
and ordained to be of the king's continual 
council, that there shall be better man- 
agement than heretofore."* 

In the sixth year of Henry, the parlia- 
ment, which Sir E. Coke derides as un- 
learned, because lawyers were excluded 
from it, proceeded to a resumption of 
grants, and a prohibition of alienating the 
ancient inheritance of the crown without 
consent of parliament ; in order to ease 
the commons of taxes, and that the king 
might live on his own.f This was a fa- 
vourite, though rather chimerical project. 
In a later parliament, it was requested 
that the king would take his council's ad- 
vice how to keep within his own revenue. 
He answered that he would willingly com- 
ply, as soon as it should be in his power.J 

But no parliament came near, in the 
number and boldness of its demands, to 
that held in the eighth year of Henry IV. 
The commons presented thirty-one arti- 
cles, none of which the king ventured to 
refuse, though pressing very severely 
upon his prerogative. lie was to name 
sixteen counsellors, by whose advice he 
was solely to be guided, none of them to 
be dismissed without conviction of misde- 
meanor. The chancellor and privy seal 
to pass no grants or other matter, contra- 
ry to law. Any persons about the court 
stirring up the king or queen's minds 
against their subjects, and duly convicted 
thereof, to lose their offices and be fined. 
The king's ordinary revenue was wholly 
appropriated to his household and the 
payment of his debts ; no grant of ward- 

* Rot. Pari., V. iii,, p. 529, 568, 573. 

t Id., p. 547. t 13 H. IV., p. 624. 



ship or other profit to be made thereout, 
nor any forfeiture to be pardoned. The 
king, " considering the wise government 
of other Christian princes, and conform- 
ing himself thereto," was to assign two 
days in the week for petitions, " it being 
an honourable and necessary thing, that 
his lieges who desired to petition him 
should be heard." No judicial officer, 
nor any in the revenue or household, to 
enjoy his place for life or term of years. 
No petition to be presented to the king 
by any of his household at times when 
the council were noi sitting. The coun- 
cil to determine nothing cognizable at 
common law, unless for a reasonable 
cause and with consent of the judges. 
The statutes regulating purveyance were 
affirmed ; abuses of various Icinds in the 
council and in courts of justice enumera- 
ted and forbidden ; elections of knights 
for counties put under regulation. The 
council and officers of state were sworn 
to observe the common law, and all stat- 
utes, those especially just enacted.* 

It must strike every reader that these 
provisions were of themselves a noble 
fabric of constitutional liberty, and hardly 
perhaps inferior to the petition of right 
under Charles I. We cannot account for 
the submission of Henry to conditions 
far more derogatory than ever were im- 
posed on Richard, because the secret 
politics of his reign are very imperfectly 
understood. Towards its close he man- 
ifested more vigour. The speaker. Sir 
Thomas Chaucer, having made the usual 
petition for liberty of speech, the king 
answered that he might speak as others 
had done in the time of his (Henry's) an- 
cestors and his own, but not otherwise ; 
for he Avould by no means have any in- 
novation, but be as much at his liberty 
as any of his ancestors had ever been. 
Some time after he sent a message to 
the commons, complaining of a law pass- 
ed at the last parliament, infringing his 
liberty and prerogative, which he re- 
quested their consent to repeal. To this 
the commons agreed, and received the 
king's thanks, who declared at the same 
time that he would keep as much free- 
dom and prerogative as any of his an- 
cestors. It does not appear what was 
the particular subject of complaint ; but 
there had been much of the same re- 
monstrating spirit in the last parliament, 
that was manifested on preceding occa- 
sions. The commons, however, for rea- 
sons we cannot explain, were rather dis- 
mayed. Before their dissolution they 
petition the king, that, whereas he was 

^RotTParl., 8 H. IV., p. 585^ 



Part IIL: 



ENGLISH CONSTITUTION. 



399 



reported to be offended at some of his 
subjects in this and in the preceding par- 
liament, he would openly declare that he 
held them all for loyal subjects. Henry 
granted this " of his special grace ;" and 
thus concluded his reign more trium- 
phantly with respect to his domestic bat- 
tles than he had gone through it.* 

Power deemed to be ill gotten is natu- 
Henry V. rally precarious ; and the instance 
bis popu- of Henry IV. has been well quoted 
'*"'^- to prove that public liberty flour- 
ishes with a bad title in the sovereign. 
None of our kings seem to have been 
less beloved ; and indeed he had little 
claim to afi'ection. But what men denied 
to the reigning king, they poured in full 
measure upon the heir of his throne. 
The virtues of the Prince of Wales are 
almost invidiously eulogized by those 
parliaments who treat harshly his fa- 
ther ;t and these records afford a strong 
presumption that some early petulance 
or riot has been much exaggerated by 
the vulgar minds of our chroniclers. One 
can scarcely understand at least, that a 
prince, who was three years engaged in 
quelling the dangerous insurrection of 
Glendour, and who, in the latter time of 
his father's reign, presided at the council, 
was so lost in a cloud of low debauchery 
as common fame represents. J Loved 
he certainly was throughout his life, as 
so intrepid, affable, and generous a tem- 
per well deserved ; and this sentiment 
•was heightened to admiration by suc- 
cesses still more rapid and dazzling than 
those of Edward HI. During his reign 
there scarcely appears any vestige of 
dissatisfaction in parliament ; a circum- 
stance very honourable, whether we as- 
cribe it to the justice of his administra- 
tion, or to the affection of his people. 
Perhaps two exceptions, though they are 
rather one in spirit, might be made : the 
first, a petition to the Duke of Glocester, 
then holding parliament as guardian of 
England, that he would move the king 
and queen to return, as speedily as might 
please them, in relief and comfort of the 
commons;^ the second, a request that 
their petitions might not be sent to the 
king beyond sea, but altogether deter- 
mined " within this kingdom of England 
during this parliament ;" and that this 
ordinance might be of force in all future 
parliaments to be held in England. || This 

* 13 H. IV., p. 648, 658. 

t Rot. Pari., vol. iii., p. 549, 568, 574, 611. 

X This passage was written before I was aware 
that the same opinion had been elaborately main- 
tained by Mr. Luders, in one of his valuable essays 
upon points of constitutional history. 

i 8 H. v., vol. iv., p. 125. 11 Id. ibid., p. 128. 



prayer, to which the guardian declined to 
accede, evidently sprang from the appre- 
hensions, excited in their minds by the 
treaty of Troyes, that England might be- 
come a province of the French crown, 
which led them to obtain a renewal of 
the statute of Edward III., declaring the 
independence of this kingdom.* 

It has been seen already, that even 
Edward 111. consulted his par- ^^,^^,^,^^ 
Iiament upon the expediency consulted 
of negotiations for peace ; o".aii public 
though at that time the com- ''^'""• 
mons had not acquired boldness enough 
to tender their advice. In Richard II. 's 
reign they answered to a similar propo- 
sition with a little more confidence, that 
the dangers each way were so considera- 
ble they dared not decide, though an hon- 
ourable peace would be the greatest com- 
fort they could have ; and concluded by 
hoping that the king would not engage to 
do homage for Calais or the conquered 
country.! The parliament of the tenth 
of his reign was expressly summoned ia 
order to advise concerning the king's 
intended expedition beyond sea ; a great 
council, which had previously been as- 
sembled at Oxford, having declared their 
incompetence to consent to this measure 
without the advice of parliament. | Yet 
a few years afterward, on a similar ref- 
erence, the commons rather declined to 
give any opinion. i^ They confirmed the 
league of Henry V. with the Emperor 
Sigismund.|| And the treaty of Troyes, 
which was so fundamentally to change 
the situation of Henry and his successors, 
obtained, as it evidently required, the 
sanction of both houses of parliament.^ 
These precedents conspiring with the 
weakness of the executive government, 
in the minority of Henry VI., to fling an 
increase of influence into the scale of 
the commons, they made their concur- 
rence necessary to all important business, 
both of a foreign and domestic nature. 
Thus commissioners were appointed to 
treat of the deliverance of the King of 
Scots, the dutchesses of Bedford and Glo- 
cester were made denizens, and mediators 
were appointed to reconcile the dukes of 
Glocester and Burgundy, by authority 
of the three estates assembled in parlia- 
ment.** Leave was given to the dukes 
of Bedford and Glocester, and others in 
the king's behalf, to treat of peace with 
France, by both houses of parliament, in 



» 8 H. v., vol. iv.. p. 130. 

t 7 R. II., vol. iii., p. 170. t Id- ibid., p. 215. 

(j 17 R. II., p. 315. 

II 4 H. v., vol. iv., p. 98. T Id. ibid., p. 135. 

** Rot. Par]., vol. iv., p. 211, 242, 277. 



400 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



pursuance of an article in the treaty of 
Troyes, that no treaty should be set on 
foot with the dauphin without consent 
of the three estates of both realms.* 
This article was afterward repealed.f 

Some complaints are made by the 
commons, even during the first years of 
Henry's minority, that the king's subjects 
underwent arbitrary imprisonment, and 
were vexed by summonses before the 
council, and by the newly-invented writ 
of subpoena out of chancery.| But these 
are not so common as formerly ; and, so 
far as the rolls lead us to any inference, 
there was less injustice committed by the 
government under Henry VI. and his 
father than at any former period. Waste- 
fulness indeed might justly be imputed to 
the regency, who had scandalously lav- 
ished the king's revenue.^ This ulti- 
mately led to an act for resuming all 
grants since his accession, founded upon 
a public declaration of the great oiBcers 
of the crown, that his debts amounted to 
jC37C,000, and the annual expense of the 
household to ^£24,000, while the ordinary 
revenue was not more than jC5000.|| 

6. But before this time the sky had be- 
gun to darken, and discontent with the 
actual administration pervaded every 
rank. The causes of this are familiar ; 
Impeachments the unpopularity of the king's 
of ministers, marriage with Margaret of 
Anjou, and her impolitic violence in the 
conduct of atfairs, particularly the impu- 
ted murder of the people's favourite, the 
Duke of Glocester. This provoked an 
attack upon her own creature, the Duke 
of Suffolk. Impeachment had lain still, 
like a sword in the scabbard, since the 
accession of Henry IV. ; when the com- 
mons, though not preferring formal arti- 
cles of accusation, had petitioned the 
king that Justice Rickhill, who had been 
employed to take the Duke of Gloces- 
ter's confession at Calais, and the lords 
appellants of Richard II. 's last parlia- 
ment, should be put on their defence be- 



* Rot. Pari., vol. iv., p. 371. 

t 23 H. VI., vol. v., p. 102. There is rather a 
curious instance in 3 H. VI., of the jealousy with 
which the commons regarded any proceedings in 
parliament, where they were not concerned. A 
controversy arose between the earls marshal and 
of Warwick respecting their precedence ; founded 
upon the royal blood of the first, and long posses- 
sion of the second. In this the commons could 
not aifect to interfere judicially ; but they found a 
singular way of meddling, by petitioning the king 
to confer the dukedom of Norfolk on the earl 
marshal, vol. iv., p. 273. 

t Rot. Pari., 1 H. VI., p. 189. 3 H. VI., p. 292. 
8H. VI., p. 343. 

(J Id., vol. v., 18H. VI.,p. 17. 

11 Id. ibid., 28 H. VI., p. 185. 



fore the lords.* In Suffolk's case, the 
commons seem to have proceeded by bill 
of attainder, or at least to have designed 
the judgment against that minister to be 
the act of the whole legislature. For 
they delivered a bill containing articles 
against liim to the lords, with a request 
that they would pray the king's majesty 
to enact that bill in parliament, and that 
the said duke might be proceeded against 
upon the said articles \n parliament ac • 
cording to the law and custom of Eng- 
land. These articles contained charges 
of high treason; chiefly relating to his 
conduct in France, which, whether trea- 
sonable or not, seems to have been gross- 
ly against the honour and advantage of 
the crown. At a later day, the commons 
presented many other articles of misde- 
meanor. To the former he made a de- 
fence, in presence of the king as well 
as the lords, both spiritual and temporal ; 
and indeed the articles of impeachment 
were directly addressed to the king, 
which gave him a reasonable pretext to 
interfere in tlie judgment. But, from ap- 
prehension, as it is said, that Suffolk 
could not escape conviction upon at least 
some part of these charges, Henry anti- 
cipated with no slight irregularity the 
course of legal trial ; and summoning the 
peers into a piuvate chamber, informed 
the Duke of Suffolk, by mouth of his 
chancellor, that, inasmuch as he had not 
put himself upon his peerage, but submit- 
ted wholly to the royal pleasure, the king, 
acquitting him of the first articles contain- 
ing matter of treason, by his own advice, 
and not that of the lords, nor by way of 
judgment, not being in a place where 
judgment could be delivered, banished 
him for five years from his dominions. 
The lords then present besought the king 
to let their protest appear on record, thai 
neither they nor their posterity might 
lose their rights of peerage by this prece- 
dent. It was justly considered as an ar- 
bitrary stretch of prerogative, in order to 
defeat the privileges of parliament, and 
screen a favourite minister from punish- 
ment. But the course of proceeding by 
bill of attainder, instead of regular im- 
peachment, was not judiciously chosen 
by the commons. f 

7. Privilege of parliament, an extensive 
and singular branch of our con- privilege of 
stitutional law, begins to attract Parliament 
attention under the Lancastrian princes. 
It is true indeed, that -we can trace long 
before by records, and may infer with 



* Rot. Pari, vol. iii., p. 430, 449. 
t 28 H. VI., vol. v., p. 176. 



Part III.] 



ENGLISH CONSTITUTION. 



401 



probability as to times whose records 
have not survived, one considerable im- 
munity, a freedom from arrest for persons 
transacting the king's business in his na- 
tional council.* Several authorities may 
be found in Mr. Hatsell's precedents ; of 
which one, in the 9th of Edward II., is 
conclusive.! But in those rude times, 
members of parliament were not always 
respected by the officers executing legal 
process, and still less by the violators of 
law. After several remonstrances, which 
the crown had evaded,J the commons ob- 
tained the statute II H. YI., c. II, for 
the punishment of such as assault any on 
their way to the parliament, giving double 
damages to the party. ^ They had more 
difficulty in establishing, notwithstanding 
the old precedents in their favour, an im- 
munity from all criminal process, except 
in charges of treason, felony, and breach 
of the peace, which is their present 
measure of privilege. The truth was, 
that with a right pretty clearly recog- 
nised, as is admitted by the judges in 
Thorp's case, the house of commons had 
no regular compulsory process at their 
command. In the cases of Lark, servant 
of a member, in the 8th of Henry VI., || 
and of Gierke, himself a burgess, in the 
39th of the same king,*[[ it was thought 
necessary to effect their release from a 
civil execution by special acts of parlia- 
ment. The commons, in a former in- 
stance, endeavoured to make the law 
general, that no members nor their ser- 
vants might be taken, except for treason, 
felony, and breach of peace ; but the king 
put a negative upon this part of their pe- 
tition. 

The most celebrated, however, of these 
early cases of privilege is that of Thomas 
Thorp, speaker of the commons in 31 H. 
VI. This person, who was moreover a 
baron of the exchequer, had been impris- 
oned on an execution at suit of the Duke 
of York. The commons sent some of 
their members to complain of a violation 
of privilege to the king and lords in par- 

* If this were to rest upon antiquity of prece- 
dent, one might be produced that would challenge 
all competition. In the laws of Ethelbert, the first 
Christian king of Kent, at the end of the sixth cen- 
tury, we find this provision: " If the king call his 
people to him (i. e. in the wittenagemot), and any 
one does an injury to one of them Jet him pay a 
fine." — VVilkins, Leges Anglo-Saxon., p. 2. 

+ Hatsell, Tol. i., p. 12. 

t Rot. Pari.. 5 H. IV., p. 541. 

<) The clergy had got a little precedence in this. 
An act passed 8 H. VI,, c. 1, granting privilege 
from arrest for themselves and servants on their 
way to convocation. 

II Rot. Pari., vol. iv., p. 357. 

IT Id., vol. v., p. 374. 

Cc 



liament, and to demand Thorp's release. 
It was alleged by the Duke of York's 
council, that the trespass done by Thorp 
was since the beginning of the parha- 
ment, and the judgment thereon given in 
time of vacation, and not during the sit- 
ting. The lords referred the question to 
the judges, who said, after deliberation, 
that " they ought not to answer to that 
question, for it hath not be used afore- 
tyme, that the judges should in anywise 
determine the privilege of this high court 
of parhament ; for it is so high and so 
mighty in his nature, that it may make 
law, and that that is law it may make no 
law ; and the determination and knowl- 
edge of that privilege belongeth to the 
lords of the parliament, and not to the 
justices." They went on, however, after 
observing that a general writ of superse- 
deas of all processes upon ground of 
privilege had not been known, to say, 
that, " if any person that is a member of 
this high court of parliament be arrested 
in such cases as be not for treason or fel- 
ony, or surety of the peace, or for a con- 
demnation had before the parliament, it 
is used that all such persons should be 
released of such arrests and make an at- 
torney, so that they may have their free- 
dom and liberty, freely to intend upon the 
parliament." 

Notwithstanding this answer of the 
judges, it was concluded by the lords 
that Thorp should remain in prison, Avith- 
out regarding the alleged privilege ; and 
the commons were directed in the king's 
name to proceed " with all goodly haste 
and speed" to the election of a new 
.speaker. It is curious to observe, that 
the commons, forgetting their grievances, 
or content to drop them, made such haste 
and speed according to this command, 
that they presented a new speaker for ap- 
probation the next day.* 

This case, as has been strongly said, 
was begotten by the iniquity of thetimes. 
The state was verging fast towards civil 
war; and Thorp, who aftersvard distin- 
guished himself for the Lancastrian cause, 
was an inveterate enemy of the Duke of 
York. That prince seems to have been 
swayed a httle from his usual temper in 
procuring so unwarrantable a determina- 
tion. In the reign of Edward IV., the 
commons claimed privilege against any 
civil suit during the time of their session ; 
but they had recourse, as before, to a 
particular act of parliament to obtain a 
writ of supersedeas i-n favour of one At- 
well, a member, who had been sued. 

* Rot. Pari., vol. v., p. 239. Hatsell's Piece 
dents, p. 29. 



402 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



The present law of privilege seems not 
to have been fully established, or at least 
effectually maintained, before the reign 
of Henry VIII.* 

No privilege of the commons can be 
so fundamental as liberty of speech. 
This is claimed at the opening of every 
parliament by their speaker, and could 
never be infringed v^rithout shaking the 
ramparts of the constitution. Richard 
II. 's attack upon Haxey has been already 
mentioned as a flagrant evidence of his 
despotic intentions. No other case oc- 
curs until the 33d year of Henry VI., 
when Thomas Young, member for Bris- 
tol, complained to the commons, that, 
" for matters by him shew^ed in the house 
accustomed for the commons in the said 
parliaments, he was therefore taken, ar- 
rested, and rigorously in open wise led 
to the Tower of London, and there griev- 
ously in great duress long time impris- 
oned against the said freedoTn and liber- 
ty," with much more to the like effect. 
The commons transmitted this petition 
to the lords, and the king " willed that 
the lords of his council do and provide 
for the said suppliant, as in their discre- 
tion shall be thought convenient and rea- 
sonable." This imprisonment of Young, 
however, had happened six years before, 
in consequence of a motion made by him, 
that the king then having no issue, the 
Duke of York might be declared heir-ap- 
parent to the crown. In the present ses- 
sion, when the duke was protector, he 
thought it well-timed to prefer his claim 
to remuneration.! 

There is a remarkable precedent in the 
9th of Henry IV., and perhaps the earliest 
authority for two eminent maxims of par- 
liamentary law ; that the commons pos- 
sess an exclusive right of originating 
money bills, and that the king ought not 
to take notice of matters pending in par- 
liament. A quarrel broke out between 
the two houses upon this ground ; and as 
we have not before seen the commons 
venture to clash openly with their supe- 
riors, the circumstance is for this addi- 
tional reason worthy of attention. As it 
has been little noticed, I shall translate 
the whole record. 

" Friday, the second day of December, 
which was the last day of the parliament, 
the commons came before the king and 
the lords in parliament, and there, by 

* Upon this subject the reader should have re- 
course to Hatsell's Precedents, vol. i., chap. i. 

t Rot. Pari, vol. v., p. 337. W. Worcester, p. 
475. Mr. Hatsell seems to have overlooked this 
case, for he mentions that of Strickland, in 1571, as 
the earliest instance of the crov^n's interference 
with freedom of speech in parliament, vol. L, p. 85. 



command of the king, a schedule of in- 
demnity touching a certain altercation 
moved between the lords and commons 
was read ; and on this it was command- 
ed by our said lord the king, that the 
said schedule shoidd be entered of record 
in the roll of parliament ; of which sched- 
ule the tenour is as follows : be it remem- 
bered, that on Monday, the 21st day of 
November, the king our sovereign lord 
being in the council-chamber in the ab- 
bey of Glocester,* the lords spiritual and 
temporal for this present parliament as- 
sembled being then in his presence, a 
debate took place among them about the 
state of the kingdom, and its defence to 
resist the mahce of the enemies who on 
every side prepare to molest the said 
kingdom and its faithful subjects, and 
how no man can resist this malice, un- 
less, for the safeguard and defence of his 
said kingdom, our sovereign lord the king 
has some notable aid and subsidy granted 
to him in his present parliament. And 
therefore it was demanded of the said 
lords by way of question, what aid would 
be sufficient and requisite in these cir- 
cumstances'! To which question it was 
answered by the said lords severally, that, 
considering the necessity of the king on 
one side, and the poverty of his people 
on the other, no less aid could be suffi- 
cient than one tenth and a half from 
cities and towns, and one fifteenth and a 
half from all other lay persons ; and be- 
sides, to grant a continuance of the sub- 
sidy on wool, woolfells, and leather, and 
of three shillings on the tun (of wine), 
and twelve pence on the pound (of other 
merchandise), from Michaelmas next en- 
suing for two years thenceforth. Where- 
upon, by command of our said lord the 
king, a message was sent to the com- 
mons of this parliament, to cause a cer- 
tain number of their body to come before 
our said lord the king and the lords, in 
order to hear and report to their com- 
panions what they should be commanded 
by our said lord the king. And upon this 
the said commons sent into the presence 
of our said lord the king and the said 
lords twelve of their companions ; to 
whom, by command of our said lord the 
king, the said question was declared, 
witli the answer by the said lords sever- 
ally given to it. Which answer it was 
the pleasure of our said lord the king, 
that they should report to the rest of 
their fellows, to the end that they might 
take the shortest course to comply with 
the intention of the said lords. Which 

* This parliament sat art Glocester. 



Part III.] 



ENGLISH CONSTITUTION. 



403 



report being thus made to the said com- 
mons, they were greatly disturbed at it, 
saying and asserting it to be much to the 
prejudice and derogation of their liber- 
ties. And after that our said lord the 
king had heard this, not willing that any 
thing should be done at present, or in 
time to come, that might anywise turn 
against the liberty of the estate, for 
which they are come to parliament, nor 
against the liberties of the said lords, 
wills, and grants, and declares, by the ad- 
vice and consent of the said lords, as fol- 
lows ; to wit, that it shall be lawful for 
the lords to debate together in this pres- 
ent parliament, and in every other for 
time to come, in the king's absence, con- 
cerning the condition of the kingdom, 
and the remedies necessary for it. And 
in like manner it shall be lawful for the 
commons, on their part, to debate to- 
gether concerning the said condition and 
remedies. Provided always, that neither 
the lords on their part, nor the commons 
on theirs, do make any report to our said 
lord the king of any grant granted by the 
commons, and agreed to by the lords, nor 
of the communications of the said grant, 
before that the Said lords and commons 
are of one accord and agreement in this 
matter, and then in manner and form ac- 
customed, that is to say, by the mouth of 
the speaker of the said commons for the 
time being, to the end that the said lords 
and commons may have what they desire 
(avoir puissent leur gree) of our said 
lord the king. Our said lord the king 
willing, moreover, by the consent of the 
said lords, that the communication had 
in this present parliament as above be 
not drawn into precedent in time to 
come, nor be turned to the prejudice or 
derogation of the liberty of the estate, for 
which the said commons are now come, 
neither in this present parliament, nor in 
any other time to come. But wills that 
himself, and all the other estates, should 
•be as free as they were before. Also, 
the said last day of parliament, the said 
speaker prayed our said lord the king on 
the part of the said commons, that he 
Avould grant the said commons, that they 
should depart in as great liberty as other 
commons had done before. To which 
the king answered, that this pleased him 
well, and that at all times it had been his 
desire."* 

Every attentive reader will discover 
this remarkable passage to illustrate sev- 
eral points of • constitutional law. For 
hence it may be perceived : first, that 

* Rot. Pari., V. iii., p. 611. 
C c2 



the king was used in those times to be 
present at debates of the lords, personal- 
ly advising with them upon the public 
business ; which also appears by many 
other passages on record ; and this prac- 
tice, I conceive, is not abolished by the 
king's present declaration, save as to 
grants of money, which ought to be of 
the free-will of parliament, and without 
that fear or influence which the pres- 
ence of so high a person might create : 
secondly, that it was already the estab- 
lished law of parliament, that the lords 
should consent to the commons' grant, 
and not the commons to the lords ; since 
it is the inversion of this order whereof 
the commons complain, and it is said ex- 
pressly that grants are made by the com- 
mons, and agreed by the lords : thirdly, 
that the lower house of parliament is 
not, in proper language, an estate of the 
realm, but rather the image and repre- 
sentative of the connnons of England ; 
who, being the third estate, with the no- 
bility and clergy, make up and constitute 
the people of this kingdom and liege sub- 
jects of the crown.* 



* A notion is entertained by many people, and 
not without the authority of some very respecta- 
ble names, that the king is one of the three estates 
of the realm, the lords spiritual and temporal 
formmg together the second, as the commons in 
parliament do the third. This is contradicted by 
the general tenour of our ancient records and law- 
books ; and indeed the analogy of other govern- 
ments ought to have the greatest weight, even if 
more reason for doubt appeared upon the face of 
our own authorities. But the instances where the 
three estates are declared or implied to be the no- 
bility, clergy, and commons, or at least their rep- 
resentatives in parliament, are too numerous for 
insertion. This land standeth, says the Chancel- 
lor Stillington, in 7th Edward IV'., by three states, 
and above that one principal, that is, to wit, lords 
spiritual, lords temporal, and commons, and over 
that, state royal, as our sovereign lord the kmg. — 
Rot. Pari., vol. v., p. 622. Thus too it is declared 
that the treaty of Staples in 1492 was to be con- 
firmed per tres status regni Anglis rite et debite 
convocatos, videlicet per prelates et clerum, nobi- 
les et communitates ejusdem regni. — Rymer, t. 
xii., p. 508. 

I will not, however, suppress one passage, and 
the only instance that has occurred in my reading, 
where the king does appear to have been reckoned 
among the three estates. The commons say, in 
the 2(1 of Henry IV., that the states of the realm 
may be compared to a trinity, that is, the king, the 
lords spiritual and temporal, and the commons. — 
Rot. Par!., vol. lii., p. 459. In this expression, 
however, the sense shows, that by estates of the 
realm they meant members, or necessary.parts of 
the parliament. 

Whitelocke, on the Parliamentary Writ, vol. ii., 
p. 43, argues at length, that the three estates are 
king, lords, and commons, which seems to have 
been a current doctrine among the popular lawyers 
of the seventeenth century. His reasoning is 
chielly grounded on the baronial tenure of bishops, 
the validity of acts passed against their consent. 



404 



EUROPE DURING THE MIDDLE AGES. 



[Chap, Vli}. 



At the next meeting of parliament, in 
allusion probably to this disagreement 
between the liouses, the king told them, 
that the states of parliament were come 
together for tlie common profit of the 
king and kingdom, and for unanimity's 
sake and general consent ; and therefore 
he was sure the commons would not at- 
tempt nor say any thing but what should 
be fitting and conducive to unanimity; 
commandmg them to meet together, and 
communicate for the public service.* 

It was not only in money bills that the 
originating power was supposed to reside 
in the commons. The course of pro- 
ceedings in parliament, as has been 
seen, from the commencement at least 
of Edward Ill.'s reign, was that the 
commons presented petitions, which the 
lords by themselves, or with the assist- 
ance o/ the council, having duly consid- 
ered, the sanction of the king was noti- 
fied or withheld. This was so much ac- 
cording to usage, that, on one occasion, 
when the commons requested the advice 
of the other house on a matter before 
them, it was answered, that the ancient 
custom and form of parliament had ever 
been for the commons to report their 
own opinion to the king and lords, and 
not to the contrary ; and the king would 
have the ancient and laudable usages of 
parliament maintained.! It is singular 
that, in the terror of innovation, the lords 
did not discover how materially this 
usage of parliament took off from their 
own legislative influence. The rule, 

and other arguments of the same kind ; which 
might go to prove that there are only at present 
two estates, but can never turn the king into 
one. 

The source of this error is an inattention to the 
primary sense of the word estate (status), which 
means an order or condition into which men are 
classed by the institutions of society. It is only in 
a secondary, or rather an elliptical application, that 
it can be referred to then- representatives in parlia- 
ment or national councils. The lords temporal, 
indeed, of England are identical with the estate 
of the nobility ; but the house of commons is not, 
strictly speaking, the estate of commonalty, to 
which its members belong, and from which they 
are deputed. So the whole body of the clergy are 
properly speaking one of the estates, and are de- 
scribed as such in the older authorities, 21 Kic. 
II., Rot. Pari., y. iii., p. 318, though latterly the 
lords spiritual in parliament acquired, with less 
correctness, that appellation. — Hody on Convoca- 
tions, p. 426. The bishops, indeed, may be said 
constructively to represent the whole of the cler- 
gy, with whose grievances they are supposed to be 
best acquainted, and whose rights it is their pecu- 
liar duty to defend. And 1 do not find that the in- 
ferior clergy had any other representation in the 
cortes of Castile and Aragon, where the ecclesi- 
astical order was always counted among the es- 
tates of the realm. 
* P. 623. t Rot. Pari., 5 R. II., p. 100. 



however, was not observed in succeed- 
ing times ; bills originated indiscrimi- 
nately in either house ; and indeed some 
acts of Henry V., which do not appear 
to be grounded on any petition, may be 
suspected, from the manner of then- in- 
sertion in the rolls of parliament, to have 
been proposed on the king's part to the 
commons.* But there is one manifest 
instance in the 18th of Henry VI., where 
the king requested the commons to give 
their authority to such regulations! as 
his council might have provided for re- 
dressing the abuse of purveyance ; to 
which they assented. 

If we are to choose constitutional pre 
cedents from seasons of tranquillity rath- 
er than disturbance, which surely is the 
only means of preserving justice or con- 



* Stat. 2 H. v., c. 6, 7, 8, 9. 4 H. VI., c. 7. 

t Rot. Pari., vol. v., p. 7. It appears by a case 
in the year-book of the thirty-third of Henry VI., 
that, where the lords made only some minor alter- 
ations in a bill sent up to them from the commons, 
even if it related to a grant of money, the custom 
was not to remand it for their assent to the amend- 
ment. — Brooke's Abridgment: Parliament. 4. 
The passage is worth extracting, in order to illus- 
trate the course of proceeding in parliament at 
that time. Case fuit que Sir J. P. fuit attaint de 
certeyn trespas par acle de parliament, dont les 
commons furent assentus, que sil ne vient eins per 
tiel jour que il forfeytera tiel summe, et les seign- 
eurs done plus longe jour, et le bil nient rebaile ai 
commons arrere ; et per Kirby, clerk des roles del 
parliament, Tuse del parliament est, que si bil 
vient primes a les commons, et ils passent ceo, il 
est use d'endorser ceo en tiel forme ; Soil bayle as 
seigniors ; et si les seigniors ne le roy nealteront le 
bil, donques est use a liverer ceo al clerkedel par- 
liament destre enrol saunz endorser ceo . . . Et si 
les seigniors volent alter un bil in ceo que poet es- 
toye ore le bil, ils poyent saunz remandre ceo al 
commons, come si les commons graunte poundage 
pur quatuorans, et les grantenl nisi par deu.x ans, 
ceo ne serra rebayle al commons ; mes si les com- 
mons grauntent nisi pur deux ans, et les seigneurs 
pur quatre ans, la ceo serra reliver al commons, et 
en cest case les seigniors doyent faire un sedule de 
lour intent, ou d'endorser le bil en ceste forme, 
Les seigneurs ceo assentent pur durer par quatuor 
ans ; et quant les commons ount le bil arrere, et ne 
volent assenter a ceo, ceo ne poet estre un actre, 
mes si les commons volent assenter, donqnes ils 
indorse leur respons sur le mergent ne basse deins 
le bil en tiel forme, Les commons sont assentansal 
sedul des seigniors, a mesme cesty bil annexe, et 
donques sera bayle ad clerke del parliament, ut 
supra. Et si un bil soit primes liver al seigniors, 
et le bil passe eux, ils ne usontde fayre ascun en- 
dorsement, mess de mitter le bil as commons, et 
donques si le bil passe les commons, il est use 
destre issint endorce, Les commons sont assent- 
ants, et ceo prove que il ad passe les seigniors de- 
vant, et lour assent est a cest passer del seigniors ; 
et ideo cest acte supra nest bon, pur ceo que ne 
fuit rebaile as commons. 

A singular assertion is made in the year-book 21 
E. IV., p. 48 (Maynaid's edit.), that a subsidy 
granted by the commons without assent of the 
peers is good enough. This cannot surely have 
been law at that time. 



Part III.] 



ENGLISH CONSTITUTION. 



405 



sistency, but little intrinsic authority can 
be given to the following declaration of 

farliamentary law in the 11th of Richard 
I. " In this parliament (the roll says) 
all the lords as well spiritual and tem- 
poral there present, claimed as their lib- 
erty and privilege, that the great matters 
moved in this parliament, and to be moved 
in other parliaments for time to come, 
touching the peers of the land, should be 
treated, adjudged, and debated according 
to the course of parliament, and not by 
the civil law, nor the common law of the 
land, used in the other lower courts of 
the kingdom ; which claim, liberty, and 
privileges, the king graciously allowed 
and granted them in full parliament."* 
It should be remembered that this asser- 
tion of paramount privilege was made in 
very irregular times, when the king was 
at the mercy of the Duke of Glocester 
and his associates, and that it had a view 
to the immediate object of justifying their 
violent proceedings against the opposite 
party, and taking away the restraint of 
the common law. It stands as a danger- 
ous rock to be avoided, not a lighthouse 
to guide us along the channel. The law 
of parliament, as determined by regular 
custom, is incorporated into our constitu- 
tion ; but not so as to warrant an indef- 
inite, uncontrollable assumption of pow- 
er in any case, least of all in judicial pro- 
cedure, where the form and the essence 
of justice are inseparable from each oth- 
er. And, in fact, this claim of the lords, 
whatever gloss Sir E. Coke may put upon 
it, was never intended to bear any rela- 
tion to the privileges of the lower house. 
I should not perhaps have noticed this 
passage so strongly if it had not been 
made the basis of extravagant assertions 
as to the privileges of parliament ;f the 
spirit of which exaggerations might not 
be ill adapted to the times wherein Sir E. 
Coke lived, though I think they produced 
at several later periods no slight mis- 
chief, some consequences of which we 
may still have to experience. 

The want of all judicial authority, ei- 
Contested ther to issue process or to exam- 
eiections ine witnesses, together with the 

howde- usual shortness of sessions, de- 
termined. • J ii 1 r /• 

prived the house of commons of 
what is now considered one of its most 
fundamental privileges, the cognizance 
of disputed elections. Upon a false re- 
turn by the sheriff, there was no remedy 
but through the king or his council. Six 
instances only, I believe, occur during the 



* Rot. Pari., vol. iii., p. 244. 
t Coke's 4th Institute, p. 15. 



reigns of the Plantagenet family, where- 
in the misconduct or mistake of the sher- 
iff is recorded to have called for a spe- 
cific animadversion, though it was fre- 
quently the ground of general complaint, 
and even of some statutes. The first is 
in the 12th of Edward II., when a petition 
was presented to the council against a 
false return for the county of Devon, the 
petitioner having been duly elected. It 
was referred to the court of exchequer 
to summon the sheriff before them.* The 
next occurs in the 36th of E. III., when 
a writ was directed to the sheriff of Lan- 
cashire, after the dissolution of parlia- 
ment, to inquire at the county-court into 
the validity of the election : and upon his 
neglect, a second writ issued to the jus- 
tices of the peace to satisfy themselves 
about this in the best manner they could, 
and report the truth into chancery. This 
inquiry after the dissolution was on ac- 
count of the wages for attendance, to 
which the knights vmduly returned could 
have no pretence. f We find a third case 
in the 7th of Richard II., when the king 
took notice that Thomas de Camoys, 
who was summoned by writ to the house 
of peers, had been elected knight for 
Surry, and directed the sheriff to return 
another.^ In the same year, the town of 
Shaftsbury petitioned the king, lords, and 
commons against a false return of the 
sheriff of Dorset, and prayed them to or- 
der remedy. Nothing further appears re- 
specting this petition.!^ This is the first 
instance of the commons being noticed 
in matters of election. But the next 
case is more material : in the 5th of Hen- 
ry IV., the commons prayed the king and 
lords in parliament, that because the writ 
of summons to parhament was not suffi- 
ciently returned by the sheriff of Rut- 
land, this matter might be examined in 
parliament, and in case of default found 
therein, an exemplary punishment might 
be inflicted ; whereupon the lords sent 
for the sheriff and Oneby, the knight re- 
turned, as well as for Thorp, who had been 
duly elected, and having examined into 
the facts of the case, directed the return to 
be amended, by the insertion of Thorp's 
name, and committed the sheriff to the 
Fleet, till he should pay a fine at the 
king's pleasure. II The last passage that 
I can produce is from the roll of 18 H. 
VI., where " it is considered by the king, 
with the advice and assent of the lords 

♦ Glanvil's Reports of Elections, edit. 1774. In 
troduction, p, 12. t 4 Prynne, p. 261. 

t Glanvil's Reports, ibid., from Prynne. 

I Id. ibid. 

II Ibid., and Rot. Pari., vol. iii., p. 530. 



406 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Vlli. 



spiritual and temporal," that whereas no 
knights have been returned for Cam- 
bridgeshire, the sheriff shall be directed, 
by another writ, to hold a court and to 
proceed to an election, proclaiming that 
no person shall come armed, nor any tu- 
multuous proceeding take place ; some- 
thing of which sort appears to have ob- 
structed the execution of the first writ. 
It is to be noticed that the commons are 
not so much as named in this entry.* 
But several provisions were made by stat- 
ute under the Lancastrian kings, when 
seats in parliament became much more 
an object of competition than before, to 
check the partiality of the sheritfs in ma- 
king undue returns. One act (11 H. IV., 
c. 1) gives the justices of assize power 
to inquire into this matter, and inflicts a 
penalty of one hundred pounds on the 
sheriff. Another (6 H. VI., c. 4) miti- 
gates the rigour of the former, so far as 
to permit the sheriff or the knights re- 
turned by him to traverse the inquests 
before the justices; that is, to be heard 
in their own defence, which, it seems, 
had not been permitted to them. An- 
other (23 H. VI., c. 14) gives an addi- 
tional penalty upon false returns to the 
party aggrieved. These statutes con- 
spire with many other testimonies to 
manifest the rising importance of the 
house of commons, and the eagerness 
with which gentlemen of landed estates 
(whatever might be the case in petty 
boroughs) sought for a share in the na- 
tional representation. 

Whoever may have been the original 
In whom voters for county representa- 
ihe right of tives, the first statute that regu- 

votino' for 

knights re- lates their election, so far from 
sided. limiting the privilege to tenants 
in capite, appears to place it upon a very 
large and democratical foundation. For 
(as I rather conceive, though not without 
much hesitation), not only all freeholders, 
but all persons whatever present at the 
county-court, were declared or rendered 
capable of voting for the knight of their 
shire. Such at least seems to be the 
inference from the expressions of 7 H. 
IV., c. 15, " all who are there present, as 
well suiters duly summoned for that 
cause as others."! And this acquires 

* Rot. Pari., vol. v., p. 7. 

t 3 Prynne's Register, p. 187. This hypothesis, 
though embraced by Prynne, is, I confess, much 
opposed to general opinion ; and a very respectable 
living writer treats such an interpretation of the 
statute 7 H. IV. as chimerical. The words cited 
in the text "as others," mean only, according to 
him, suiters not duly summoned. — Heywood on 
Elections, vol. i., p. 20. But, as I presume, the 
summons to freeholders was by general proclama- 



some degree of confirmation from the 
later statute, 8 H. VI., c. 7, which, re- 
citing that " elections of knights of shires 
have now of late been made by very 
great, outrageous, and excessive number 
of people dwelling within the same coun- 
ties, of the which most part was people 
of small substance and of no value," con- 
fines the elective franchise to freeholders 
of lands or tenements to the value of 
forty shillings. 

The representation of towns in parlia- 
ment was founded upon two Elections of 

principles ; of consent to public Burgesses. 
burdens and of advice in public meas- 
ures, especially such as related to trade 
and shipping. Upon both these accounts 
it was natural for the kings who first 
summoned them to parliament, little fore- 
seeing that such half-emancipated burgh- 
ers would ever clip the loftiest plumes 
of their prerogative, to make these as- 
semblies numerous, and summon mem- 
bers from every town of consideration 
in the kingdom. Thus the writ of 23 E. 
I. directs the sherifl's to cause deputies 
to be elected to a general council from 
every city, borough, and trading town. 
And although the last words are omitted 
in subsequent writs, yet their spirit was 
preserved ; many towns having constant- 
ly returned members to parliament by 
regular summonses from the sheriffs, 
which were no chartered boroughs, nor 
had apparently any other claim than their 
populousness or commerce. These are 
now called boroughs by prescription.* 



tion ; so that it is not easy to perceive what differ- 
ence there could be between summoned and un- 
summoned suiters. And if the words are supposed 
to glance at the private summonses to a few friends, 
by means of which the sheriffs were accustomed 
to procure a clandestine election, one can hardly 
imagine that such persons would be styled "duly 
summoned." It is not unlikely, however, that 
these large expressions were inadvertently used, 
and that they led to that inundation of voters with- 
out property, which rendered the subsequent act 
of Henry VI. necessary. Thai of Henry IV. had 
itself been occasioned by an opposite evil, the close 
election of knights by a few persons in the name 
of the county. 

Yet the consequence of the statute of Henry IV. 
was not to let in too many voters, or to render elec- 
tions tumultuous, in the largest of English coun- 
ties, whatever it might be in'others. Prynne has 
published some singular sheriffs' indentures for the 
county of York, all during the interval between the 
acts of Henry IV. and Henry VI., which are sealed 
by a few persons calling themselves the attorneys 
of some peers and ladies, who, as far as appears, 
had solely returned the knights of that shire. — 3 
Prynne, p. 152. What degree of weight these 
anomalous returns ought to possess, I leave to the 
reader. 

* The majority of prescriptive boroughs have 
prescriptive corporations, which carry the legal, 
which is not always the moral presumption of an 



Part III.l 



ENGLISH CONSTITUTION. 



407 



Besides these respectable towns, there 
were some of a less eminent figure, 
which had writs directed to them as an- 
cient demesnes of the crown. During 
times of arbitrary taxation, the crown 
had set tallages alike upon its chartered 
boroughs and upon its tenants in de- 
mesne. When parliamentary consent 
became indispensable, the free tenants in 
ancient demesne, or rather such of them 
as inhabited some particular vills, were 
called to parliament among the other 
representatives of the commons. They 
are usually specified distinctly from the 
other classes of representatives in grants 
of subsidies throughout the parliaments 
of the two first Edwards, till, about the 
beginning of the Third's reign, they 
were confounded with ordinary burges- 
ses.* This is the foundation of that par- 
ticular species of elective franchise inci- 
dent to what we denominate burgage 
tenure ; which, however, is not confined 
to the ancient demesne of the crown. f 

The proper constituents therefore of 
the citizens and burgesses in parliament 
appear to have been — 1. All chartered 
boroughs, whether they derived their 
privileges from the crown or from a 
mesne lord, as several in Cornwall did 
from Richard, kin_g of the Romans ;J 2. 
All towns which were the ancient or the 
actual demesne of the crown ; 3. All 
considerable places, though unincorpo- 
rated, which could afford to defray the 
expenses of their representatives, and 
had a notable interest in the public wel- 
fare. But no parliament ever perfectly 
corresponded with this'- theory. The 



original charter. But " many borouglis and towns 
m England have burgesses by prescription, that 
never were incorporated." — Ch. J. Hobart in Duu- 
gannon Cas€, Hobart's Reports, p. 15. And Mr. 
Luders thinks, I know not how justly, that in the 
age of Edward I., which is most to our immediate 
purpose, " there were not perhaps thirty corpora- 
tions in the kingdom." — Reports of Elections, vol. 
i., p. 9S. But I must allow that, in the opinion of 
many sound lawyers, the representation of unchar- 
tered, or at least unincorporated boroughs, was rath- 
er a rcnl privilege, and founded upon tenure, than 
one arising out of their share in public contributions. 
— Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 
951. Heywood on Borough Elections, p. 11. This 
Inquiry is very obscure ; and perhaps the more so, 
because the learning directed towards it has more 
frequently been that of advocates pleading for their 
clients than of unbiased antiquaries. If this be 
kept in view, the lover of constitutional history 
will find much information in several of the re- 
ported cases on controverted elections ; particu- 
larly those of Tewksbury and Liskeard in Peck- 
well's Reports, vol. i. 

* Brady on Boroughs, p. 75, 80, and 163. Case 
of Tewksbury, in Peckwell's Reports, vol. i., p 
178. 

t Littleton, s. 162, 163. % Brady, p. 97. 



writ was addressed in general po^verof 
terms to the sheriff, requiring the sheriff 
him to cause two knights to be '^ """^ 
elected out of the body of the °'"^° ^' 
county, two citizens from every city, and 
two burgesses from every borough. It 
rested altogether upon him to determine 
what towns should exercise this fran- 
chise ; and it is really incredible, with all 
the carelessness and ignorance of those 
times, what frauds the sheriffs ventured 
to commit in executing this trust. Though 
parliaments met almost every year, and 
there could be no mistake in so notori- 
ous a fact, it was the continual practice 
of sheriffs to omit boroughs that had 
been in recent habit of electing mem- 
bers, and to return upon the writ that 
there were no more within their county. 
Thus, in the 12th of Edward III., the sher- 
iff of Wiltshire, after returning two citi- 
zens for Salisbury, and burgesses for two 
boroughs, concludes with these words : 
" There are no other cities or boroughs 
within my bailiwick." Yet in fact eight 
other towns had sent members to pre- 
ceding parliaments. So in the Gth of a 
Edward II., the sheriff of Bucks declared^ 
that he had no borough within his county 
except Wycomb ; though Wendover, Ag- 
moadesham, and Marlow had twice made 
returns since that king's accession.* And 
from this cause alone it has happened 
that many towns called boroughs, and 
having a charter and constitution as such, 
have never returned members to parlia- 
ment; some of which are novv among 
the most considerable in England, as 
Leeds, Birmingham, and Macclesfield. f 

It has been suggested, indeed, by Bra- 
dy,! that these returns may not appear so 
false and collusive if we suppose the sher- 
iff to mean only that there were no res- 
ident burgesses within these boroughs fit 
to be returned, or that the expense of 
their wages would be too heavy for the 
place to support. And no doubt the lat- 
ter plea, whether implied or not in the re- 
turn, was very frequently an inducement 
to the sheriffs to spare the smaller bor- 

* Brady on Boroughs, p. 110. 3 Prynne, p. 231. 
The latter even argues that this power of omitting 
ancient boroughs was legally vested in the sheriif 
before the 5th of Richard II., and though the lan- 
guage of that act implies the contrary of this posi- 
tion, yet it is more than probable that most of our 
parliamentary boroughs by prescription, especially 
such as were then unincorporated, are indebted 
for their privileges to the exercise of the sheriff's 
discretion ; not founded on partiality, which would 
rather have led him to omit them, but on the broad 
principle that they were sufficiently opulent and 
important to send representatives to parliament. 

1 Willis, Notitia Parliamentaria, vol. i., preface, 

p. 35. X P. in. 



408 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII, 



oughs. The wages of knights were four 
shillings a day, levied on all freeholders, 
or at least on all holding by knight-ser- 
vice, within the county.* Those of bur- 
gesses were half that sum ;t but even this 
pittance was raised with reluctance and 
difficulty from miserable burghers, little 
solicitous about political franchises. Pov- 
erty, indeed, seems to have been accepted 
as a legal excuse. In the 6th of E. II., 
the sheriff of Northumberland returns to 
the writ of summons, that all his knights 
are not sufficient to protect the county ; 
and in the 1st of E. III., that they were 
too much ravaged by their enemies to 
send any members to parliament.| The 
sheriffs of Lancashire, after several re- 

* It is a perplexing question, whether freehold- 
ers in soccage were habie to contribute towards 
the wages of knights ; and authorities might be 
produced on both sides. The more probable sup- 
position is that they were not exempted. See the 
various petitions relating to the payment of wages 
in Prynne's fourth Register. This is not uncon- 
nected with the question as to their right of suf- 
frage. See ante, p. 360. Freeholders within fran- 
chises made repeated endeavours to exempt them- 
^selves from payment of wages. Thus in 9 H. IV. 
•it was settled by parliament, that, to put an end to 
the disputes on this subject between the people of 
Cambridgeshire and those of the Isle of Ely, the 
latter should pay 200Z. and be quit in future of all 
charges on that account. — Rot. Pari., vol. iv., p. 
383. By this means the inhabitants of that fran- 
chise seem to have purchased the right of suifiage, 
which they still enjoy, though not, 1 suppose, suit- 
ers to the county-court. In most other franchises, 
and in many cities erected into distinct counties, 
the same privilege of voting for knights of the 
shire is practically exercised ; but whether this 
has not proceeded as much from the tendency of 
returning officers and of parliament to favour the 
right of election in doubtful cases, as from the 
merits of their pretensions, may be a question. 

+ The wages of knights and burgesses were first 
reduced to this certain sum by the writs De levan- 
dis expensis, 16 E. II. — Prynne's fourth Register, 
p. 53. These were issued at the request of those 
who had served after the dissolution of parliament, 
and included a certain number of days, according 
to the distance of the county whence they came, 
for going and returning. It appears by these that 
thirty-five or forty miles were reckoned a day's 
journey ; which may correct the exaggerated no- 
tions of bad roads and tardy locomotions that are 
sometimes entertained. — See Prynne's fourth part, 
and Willis's Notitia Parliarnentaria, passim. 

The latest entries of writs for expenses in the 
close rolls are of 2 H. V. ; but they may be proved to 
have issued much longer ; and Prynne traces them 
to the end of Henry Vlll.'s reign, p. 495. With- 
out the formality of this writ, a very few instances 
of towns remunerating their burgesses for attend- 
ance in parliament are known to have occurred in 
later times. Andrew Marvel is commonly said to 
have been the last who received this honourable 
salary. A modern book asserts that wages were 
paid in some Cornish boroughs as late as the 
eighteenth century.— Lyson's Cornwall, preface, p. 
xxxii. ; but the passage quoted in proof of this is 
not precise enough to support so unlikely a fact. 
X 3 Prynne, p. 165. 



turns that they had no boroughs within 
their county, though Wigan, Liverpool, 
and Preston were such, alleged at length 
that none ought to be called upon on ac- 
count of their poverty. This return was 
constantly made, from 3G E. 111. to the 
reign of Henry VI.* 

The elective franchise was deemed by 
the boroughs no privilege or p^, ^^ 
blessing, but rather, during the oiViro''u"g'ha 
chief part of this period, an in- "> '^n «i 
tolerable grievance. Where they '"""''"5. 
could not persuade the sheriff to omit 
sending his writ to them, they set it at 
defiance by sending no return. And this 
seldom failed to succeed, so that after 
one or two refusals to comply, which 
brought no punishment upon them, they 
were left in quiet enjoyment of their in- 
significance. The town of Torrington. 
in Devonshire, went farther, and obtained 
a charter of exemption from sending bur- 
gesses, grounded upon what the charter 
asserts to appear on the rolls of chance- 
ry, that it had never been represented 
before the 21st of E. III. This is abso- 
lutely false, and is a proof how little we 
can rely upon the veracity of records, 
Torrington having made not less than 
twenty-two returns before that time. It 
is curious, that in spite of this charter, the 
town sent members to the two ensuing 
parliaments, and then ceased for ever.-j- 
Richard II. gave the inhabitants of Col- 
chester a dispensation from returning bur- 
gesses for five years, in consideration of 
the expenses they had incurred in forti- 
fying the town. I But this immunity, 
from whatever reason, was not regarded, 
Colchester having continued to make re- 
turns as before. 

The partiality of sheriffs in leaving out 
boroughs which were accustomed in old 
time to come to the parliament, was re- 
pressed, as far as law could repress it, by 
a statute of Richard II., which imposed a 
fine on them for such neglect, and upon 
any member of parliament who should 
absent himself from hisduty.i^ But it is, 
I think, highly probable, that a great part 
of those who were elected from the bor- 
oughs did not trouble themselves with at- 
tendance in parliament. The sherilTeven 
found it necessary to take sureties for 
their execution of so burdensome a duty, 
whose names it was usual, down to the 
end of the fifteenth century, to endorse 
upon the writ along with those of the 
elected. II This expedient is not likely to 

* 4 Prynne, p. 317. t Id., p. 320. 
t 3 Prynne, p. 241. 6 5 R. II., stat. ii., c. 4. 
II Luders's Reports, vol. i., p. 15. Sometimes 
; an elected burgess absolutely refused to go to par- 



Paet III] 



ENGLISH CONSTITUTION. 



409 



have been very successful ; and the small 
number, comparatively speaking, of writs 
for expenses of members for boroughs, 
which have been published by Pryune, 
w^hile those for the knights of shires are 
almost complete, leads to a strong pre- 
sumption that their attendance was very 
defective. This statute of Richard II. 
produced no sensible effect. 

By what person the election of bur- 
"Whothe g6sses was usually made is a 
electors in question of great obscurity, 
boroughs which is still occasionally deba- 
^"^' ted before committees of parlia- 
ment. It appears to have been the com- 
mon practice for a very few of the prin- 
cipal members of the corporation to make 
the election in the county-court ; and their 
names, as actual electors, are generally 
returned upon the writ by the sheriff.* 
But we cannot surely be warranted by 
this to infer that they acted in any other 
capacity than as deputies of the whole 
body, and indeed it is frequently ex- 
pressed that they chose such and such 
persons by the assent of the communi- 
ty ;t by which word, in an ancient cor- 
porate borough, it seems natural to un- 
derstand the freemen participating in its 
general franchises, rather than the ruling 
body, which, in many instances at pres- 
ent, and always perhaps in the earliest 
age of corporations, derived its authority 
by delegation from the rest. The con- 
sent, however, of the inferior freemen 
we may easily believe to have been 
merely nominal ; and from being nomi- 
nal, it would in many places come by de- 
grees not to be required at all ; the cor- 
poration, specially so denominated, or 
municipal government, acquiring by 
length of usage an exclusive privilege in 
election of members of parliament, as 
they did in local administration. This, 
at least, appears to me a more probable 
hypothesis than that of Dr. Brady, \^o 
limits the original right of election in all 
corporate boroughs to the aldermen or 
other capital burgesses. | 

The members of the house of corn- 
Members of iiions, from this occasional dis- 
the House use of ancient boroughs, as 
of Commons, ^ell as from the creation of 
new ones, underwent some fluctuation 
during the period subject to our review. 
Two hundred citizens and burgesses sat 
in the parliament held by Edward I. in 

liament, and drove his constituents to a fresii 
choice.— 3 Prynne, p. 277. 

* 3 Prynne, p. 252. 

t Idem, p. 257, de assensu totius communita- 
tis predictae elegerunt R. W., .so in several other 
instances quoted in the ensuing pages. 

t Brady on Boroughs, p. 132, &c. 



his twenty-third year, the earliest epoch 
of acknowledged representation. But in 
the reigns of Edward III. and his three 
successors, about ninety places, on an 
average, returned members, so that we 
may reckon this part of the commons at 
one hundred and eighty.* These, if reg- 
ular in their duties, might appear an over- 
balance for the seventy-four knights who 
sat with them. But the dignity of an- 
cient lineage, territorial wealth, and mil- 
itary character, in times when the feudal 
spirit was hardly extinct, and that of 
chivalry at its height, made these burgh- 
ers veil their heads to the landed aris- 
tocracy. It is pretty manifest that the 
knights, though doubtless with some sup- 
port from the representatives of towns, 
sustained the chief brunt of battle against 
the crown. The rule and intention of 
our old constitution was, that each coun- 
ty, city, or borough should elect deputies 
out of its own body, resident among 
themselves, and consequently acquainted 
with their necessities and grievances.! 
It would be very interesting to discover 
at what time, and by what degrees, the 
practice of election swerved from this 
strictness. But I have not been able to 
trace many steps of tlie transition. The 
number of practising lawyers who sat in 
parliament, of which there are several 
complaints, seems to afford an inference 
that it had begun in the reign of Edward 
III. Besides several petitions of the 
commons, that none but knights or repu- 
table squires should be returned for 
shires, an ordinance was made in the 
forty-sixth of his reign that no lawyer 
practising in the king's court, nor sheriff 
during his shrievalty, be returned knight 
for a county ; because these lawyers put 
forward many petitions in the name of 
the commons, which only concerned their 
clients. J: This probably was truly al- 
leged, as we may guess from the" vast 
number of proposals for changing the 
course of legal process whicli" fill the 

* WilHs, Notitia Parliamentaria, vol. iii., p. 96, 
&c. 3 Prynne, p. 224, &c. 

t In 4 Edw. II., the sheriff of Rutland made this 
return : Eligi feci in pleno comitatu, loco diiorum 
militum, eo quod milites non sunt in hoc comitatu 
commorantes, duos homines de comitatu Rutland, 
de discretioribus et ad laborandum potentioribus, 
&c.— 3 Prynne, p. 170. But this deficiency of ac- 
tual knights soon became very common. In 19 E. 
II. tliere were twenty-eight members returned 
from shires who were not linights, and but twen- 
ty-seven who were such. The former had at this 
time only two shillmgs or throe shillings a day for 
their wages, while the real knights had four shil- 
lmgs. — 4 Prynne, p. 53, 74. But in tiie next reigr 
their wages were put on a level. 

t Rot. Pari., vol. ii., p. 310. 



410 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



rolls during this reign. It is not to be 
doubted, however, that many practising 
lawyers were men of landed estate in 
their respective counties. 

An act in the first year of Henry V. 
directs that none be chosen knights, citi- 
zens, or burgesses, who are not resident 
within the place for which they are re- 
turned on the day of the date of the 
writ * This statute apparently indicates 
a point of time when the deviation from 
the line of law was frequent enough to 
attract notice, and yet not so established 
as to pass for an unavoidable irregulari- 
ty. It proceeded, however, from great 
and general causes, which new laws, in 
this instance, very fortunately, are utter- 
ly incompetent to withstand. There can- 
not be a more opposite proof of the inef- 
ficacy of human institutions to struggle 
against the steady course of events, than 
this unlucky statute of Henry V., which 
is almost a solitary instance in the law 
of England, wherein the principle of de- 
suetude has been avowedly set up against 
an unrepealed enactment. I am not 
aware, at least, of any other, which not 
only the house of commons, but the court 
of king's bench has deemed itself at lib- 
•erty to declare unfit to be observed.! 
Even at the time when it was enacted, 
the law had probably, as such, very Httle 
effect. But still the plurality of elections 
were made, according to ancient usage 
as well as statute, out of the constituent 
body. The contrary instances were ex- 
ceptions to the rule ; but exceptions in- 
creasing continually, till they subverted 
the rule itself. Prynne has remarked, 
that we chiefly find Cornish surnames 
among the representatives of Cornwall, 
and those of northern families among the 
returns from the north. Nor do the 
members for shires and towns seem to 
have been much interchanged ; the names 
of the former belonging to the most an- 
cient families, while those of the latter 
have a more plebeian cast. J In the reign 
of Edward IV,, and not before, a very few 
of the burgesses bear the addition of es- 
quire in tlie returns ; which became uni- 
versal in the middle of the succeeding 
century. § 

* 1 H. v., c. 1. 

t See the case of Dublin university, in the first 
volume of Peckwell's Reports of contested elec- 
tions. Note D., p. 53. The statute itself was re- 
pealed by 14 G. 111., c. 58, 

} By 23 H. VI., c. 15, none but gentlemen born, 
generosi a nativitate, are capable of sitting in par- 
liament as knights of counties ; an election was 
Bet aside 39 H. VI., because the person returned 
was not of gentle birth. — Prynne's 3d Reg., p. 161. 

^ Willis, Notitia Parliamentaria. Prynne's 4th 



Even county elections seem in gener- 
al, at least in the fourteenth cen- irregularity 
tury, to have been ill attend- of elections, 
ed, and left to the influence of a few 
powerful and active persons. A petition- 
er against an undue return in the 12th of 
Edward II. complains that, whereas he 
had been chosen knight for Devon, by Sir 
William Martin, bishop of Exeter, with 
the consent of the county, yet the sheriff 
had returned another.* In several in- 
dentures of a much later date, a few per- 
sons only seem to have been concerned 
in the election, though the assent of the 
community be expressed.! These ir- 
regularities, which it would be exceed- 
ingly erroneous to convert, with Hume, 
into lawful customs, resulted from the 
abuses of the sheriff's power, which, 
when parliament sat only for a few weeks, 
with its hands full of business, were al- 
most sure to escape with impu- influence of 
nity. They were sometimes the crown 
also countenanced, or rather in- "p°" ''^®"'- 
stigated by the crown, which, having re- 
covered in Edward II. 's reign the prerog- 
ative of naming the sheriffs, surrendered 
by an act of his father,;}: filled that office 
with its creatures, and constantly disre- 
garded the statute forbidding their con- 
tinuance beyond a year. Without search- 
ing for every passage that might illus- 
trate the interference of the crown in elec- 
tions, I will mention two or three leading 
instances. When Richard II. was medi- 
tating to overturn the famous commis- 
sion of reform, he sent for some of the 
sherifls, and required them to permit no 
knight or burgess to be elected to the 
next parliament without the approbation 
of the king and his council. The sheriffs 
replied, that the commons would main- 
tain their ancient privilege of electing 

Register, p. 1184. A letter in that authentic and 
interesting accession to our knowledge of ancient 
times, the Paston collection, shows that eager 
canvass was sometimes made by country gentle- 
men in Edward IV. 's reign to represent boroughs. 
This letter throws light at the same time on the 
creation or revival of boroughs. The writer tells 
Sir John Paston : " If ye miss to be burgess of 
Maiden, and my lord chamberlain will, ye may be 
in another place ; there be a dozen towns in Eng- 
land that choose no burgess which ought to do it ; 
ye may be set in for one of those towns an' ye be 
friended." This was in 1472, vol. ii., p. 107. 

* Glanvil's Reports of Elections, edit. 1774. In- 
troduction, p. xii. 

t Prynne's 3d Register, p. 171. 

t 28 E. I., c. 8. 9 E. II. It is said that the 
sheriff was elected by the people of his county in 
the Anglo-Saxon period ; no instance of this, how- 
ever, according to Lord Lyttleton, occurs alter the 
conquest. Shrievalties were commonly sold by 
the Norman kings.— Hist, of Henry II., vol. li., p. 
921. 



Part III.] 



ENGLISH CONSTITUTION. 



411 



their own representatives.* The parlia- 
ment of 1397, which attainted his ene- 
mies, and left the constitution at his mer- 
cy, was chosen, as we are told, by dint 
of intimidation and influence. f Thus 
also that of Henry VI., held at Coventry 
in 1460, wherein the Duke of York and 
his party were attainted, is said to have 
been unduly returned by the like means. 
This is rendered probable by a petition 
presented to it by the sheriffs, praying 
indemnity for all which they had done in 
relation thereto contrary to law. J An 
act passed according to' their prayer, and 
in confirmation of elections. A few 
years before, in 1455, a singular letter 
under the king's signet is addressed to 
the sheriffs, reciting that " we be enfourm- 
ed there is busy labour made in sondry 
wises by certaine persons for the che- 

syng of the said knights, of which 

labour we marvaille greatly, insomuche 
as it is nothing to the honour of the la- 
borers, but ayenst their worship ; it is 
also ayenst the lawes of the lande," with 
more to that effect; and enjoining the 
sheriffs to let elections be free and the 
peace kept.^ There was certainly no 
reason to wonder that a parliament, 
which was to shift the virtual sovereign- 
ty of the kingdom into the hands of one 
whose claims were known to extend 
much farther, should be the object of tol- 
erably warm contests. Thus in the Pas- 
ton letters, we find several proofs of the 
importance attached to parliamentary 
elections by the highest nobility. || 

The house of lords, as we left it in the 
Constitu- reign of Henry III., was entirely 
tionorthe composed of such persons hold- 
House of ing lands by barony as were sum- 
moned by particular writ of par- 
liament.^ Tenure and summons were 
both essential at this time in order to 
render any one a lord of parliament ; the 
lirst by the ancient constitution of our 
feudal monarchy from the conquest ; the 

* Vita Ricardi II., p. 85. 

•f Olterbourne, p. 191. He says of the knights 
returned on this occasion, that they were not elect- 
ed per communitatem ut rnos exigit, sed per regi- 
am voluntatem. 

t Prynne's 2d Reg., p. 141. Rot. Pari., vol. v., 
p. 367. ^ Id , p. 450. 

II Vol. i., p. 96, 98 ; vol. ii., p. 99, 105 ; vol. ii., 
p. 243. 

^ Upon this dry and obscure subject of inquiry, 
the nature and constitution of the house of lords 
during this period, I have been much indebted to 
the first part of Prynne's Register, and to West's 
Inquiry into the manner of creating peers ; which, 
though written with a party motive, to serve the 
ministry of 1719 in the peerage bill, deserves, for 
the perspicuity of the method and style, to be reck- 
oned among the best of our constitutional disserta- 
tions. 



second by some regulation or usage of 
doubtful origin, which was thoroughly 
established before the conclusion of Hen- 
ry III.'s reign. This produced, of course, 
a very marked difference between the 
greater and the lesser, or unparliament- 
ary barons. The tenure of the latter, 
however, still subsisted, and though too 
inconsiderable to be members of the le- 
gislature, they paid relief as barons, they 
might be challenged on juries, and, as I 
presume, by parity of reasoning, were 
entitled to trial by their peerage. These 
lower barons, or, more commonly, ten- 
ants by parcels of baronies,* may be 
dimly traced to the latter years of Ed- 
ward IILf But many of them were suc- 
cessively summoned to parliament, and 
thus recovered the former lustre of their 
rank ; while the rest fell gradually into 
the station of commoners, as tenants by 
simple knight-service. 

As tenure without summons did not 
entitle any one to the privileges Baronial 
of a lord of parliament, so no ^^^^l^fl; 
spiritual person at least ought to lords spir- 
have been summoned without ''"^i. 
baronial tenure. The prior of St. James 
at Northampton, having been summoned 
in the twelfth of Edward II., was dis- 
charged upon his petition, because he 
held nothing of the king by barony, but 
only in frankalmoign. The prior of Brid- 
lington, after frequent summonses, was 
finally left out, with an entry made in the 
roll that he held nothing of the king. 
The abbot of Leicester had been called 
to fifty parliaments : yet, in the 25th of 

* Baronies were often divided by descent among 
females into many parts, each retaining its charac- 
ter as a fractional member of a barony. The ten- 
ants in such case were said to hold of the king by 
the third, fourth, or twentieth part of a barony, and 
did service or paid relief in such proportion. 

t Madox, Baronia Anglica, p. 42 and 58. West's 
Inquiry, p. 28, 33. That a baron could only be 
tried by his fellow-barons, was probably a rule as 
old as the trial per pais of a 'commoner. Id 4 E. 
in., Sir Simon Bereford having been accused be- 
fore the lords in parliament of aiding and advising 
Mortimer in his treasons, they declared with one 
voice that he was not their peer ; wherefore they 
were not bound to judge hnn as a peer of the land; 
but inasmuch as it was notorious that he had been 
concerned in usurpation of royal powers and mur- 
der of the liege lord (as they styled Edward II.), 
the lords, as judges of parliament, by assent of the 
king in parliament, awarded and adjudged him to 
be hanged. A like sentence, with a like protesta- 
tion, was passed on Mautravers and Gournay. 
There is a very remarkable anomaly in the case of 
Lord Berkley, who, though undoubtedly a baron, 
his ancestors having been summoned from the ear- 
liest date of writs, put himself on his trial in par 
liament by twelve knights of the county of Glo- 
cester.— Rot. Pari., vol. ii., p. 53. Rymer, t. iv., 
p. 734. 



412 



EUROPE DURING THE MIDDLE AGES. 



[Chap, VIII. 



Edward III., he obtained a charter of per- 
petual exemption, reciting that he held 
no lands or tenements of the crown by 
barony, or any such service as bound him 
to attend parliaments or councils.* But 
great irregularities prevailed in the rolls 
of chancery, from which the writs to 
spiritual and temporal peers were taken ; 
arising in part, perhaps, from negligence, 
in part from wilful perversion : so that 
many abbots and prioi's, who like these 
had no baronial tenure, were summoned 
at times and subsequently omitted, of 
whose actual exemption we have no 
record. Out of one hundred and twen- 
ty-two abbots and forty-one priors, who 
at some time or other sat in parliament, 
but twenty-five of the former and two 
of the latter were constantly summoned ; 
the names of forty occur only once, and 
those of thirty-six others not more than 
five times. t Their want of baronial te- 
nure, in all probability, prevented the rep- 
etition of writs which accident or occa- 
sion had caused to issue. | 

The ancient temporal peers are sup- 
Barons posed to have been intermingled 
called by with persons who held nothing of 
^"'- the crown by barony, but attended 
in parliament solely by virtue of the 
king's prerogative exercised in the writ 
of summons.^ These have been called 
barons by writ ; and it seems to be denied 
by no one, that, at least under the three 
first Edwards, there were some of this 
description in parliament. But after all 
the labours of Dugdale and others in 
tracing the genealogies of our ancient 

* Prynne, p. 142, &c. West's Inquiry. 
. t Prynne, p. 141. 

i It is worthy of observation, that the spiritual 
peers summoned to parliament were in general 
considerably more numerous than the temporal. — 
Prynne, p. 1 14. This appears, among other causes, 
to have saved the church from that sweeping ref- 
ormation of its wealth, and perhaps of its doc- 
trines, which the commons were thoroughly in- 
clined to make \mder Richard II. and Henry IV. 
Thus the reduction of the spiritual lords by the 
dissolution of monasteries was indispensably re- 
quired to bring the ecclesiastical order into due 
subjection to the state. 

(J Perhaps it can hardly be said that the king's 
prerogative compelled the party summoned, not 
being a tenant by barony, to take his seat. But 
though several spiritual persons appear to have 
been discharged from attendance on account of 
their holding nothing by barony, as has been justly 
observed, yet there is, I believe, no istance of any 
layman's making such an application. The terms 
of the ancient writ of summons, however, in fide et 
homagio quibus nobis tenemini, afford a presump- 
tion that a feudal tenure was, in construction of 
law, the basis of every lord's attendance in parlia- 
ment. This form was not finally changed to the 
present, in fide et Ugentia, till the 46th of Edw. III. 
— Prynne's 1st Register, p. 206. 



aristocracy, it is a problem of much diffi- 
culty to distinguish these from the terri- 
torial barons. As the latter honours de- 
scended to female heirs, they passed into 
new families and new names, so that we 
can hardly decide of one summoned for 
the first time to parliament, that he did 
not inherit the possession of a feudal 
barony. Husbands of baronial heiresses 
were almost invariably summoned in 
their wives' right, though frequently by 
their own names. They even sat after 
the death of their wives, as tenants by 
the courtesy.* Again, as lands, though 
not the subject of frequent transfer, were, 
especially before the statute de donis, 
not inalienable, we cannot positively as- 
sume that all the right heirs of original 
barons had preserved those estates upon 
which their barony had depended. f If 
we judge, however, by the lists of those 
summoned, according to the best means 
in our power, it will appear that the reg- 
ular barons by tenure were all along very 
far more numerous than those called by 
writ : and that, from the end of Edward 
III.'s reign, no spiritual persons, and few 
if any laymen, except peers created by 
patent, were summoned to parliament, 
who did not hold territorial baronies. J 

With respect to those who were in- 
debted for their seats among the lords 



* Collins's Proceedings on Claims of Baronies, 
p. 24 and 73. 

t Prynne speaks of "the alienation of baronies 
by sale, gift, or marriage, after which the new pur- 
chasers were summoned instead," as if it frequently 
happened. — 1st Register, p. 239. And several in- 
stances are mentioned m the Bergavenny case 
(Collins's Proceedings, p. 113), where land-baro- 
nies having been entailed by the owners on their 
heirs male, the heirs general have been excluded 
from inheriting the dignity. 

It is well known, notwithstanding these ancient 
precedents, that the modern doctrine does not ad- 
mit any right in the purchaser of a territorial peer- 
age, such as Arundel, to a writ of summons, or 
consequently to any privilege as a lord of parlia- 
ment. But it might be a speculative question, 
whether such a purchaser could not become a real 
though unparliamentary baron, and entitled as such 
to a trial by the peers. For though the king, as- 
sisted, if he please, by the advice of the house of 
lords, is finally and exclusively to decide upon 
claims to parliamentary privileges, yet the dignity 
of peerage, whether derived under ancient tenure 
or a royal patent, is vested in the possessor by act 
of law, whereof the ordinary courts of justice may 
incidentally take cognizance. See the case of R. 
V. Knowles, Salkeld's Reports, p. 509, the princi- 
ples of which will never be controverted by any 
one acquainted with the original constitution of 
this country. 

t Prynne's 1st Register, p. 237. This must be 
understood to mean that no new families were 
summoned ; for the descendants of some who are 
not supposed to have held land-baronies may con- 
stantly be found in later lists. 



Part 111.] 



ENGLISH CONSTITUTION. 



413 



to the king's writ, there are two materi- 
al questions ; whether they acquired an 
hereditary nobility by virtue of the writ : 
and, if this be determined against them, 
whether they had a decisive, or merely a 
deliberative voice in the house. Now, 
for the first question, it seems that, if the 
writ of summons conferred an estate of 
inheritance, it must have done so either by 
virtue of its terms, or by established con- 
struction and precedent. But the writ 
contains no words by which such an es- 
tate can in law be limited ; it summons 
the person addressed to attend in parha- 
ment in order to give his advice on the 
public business, but by no means implies 
that his advice will be required of his 
heirs, or even of himself, on any other 
occasion. The strongest expression is 
" vobiscum et cateris prcelatis, magnati- 
bus et proceribus," which appears to 
place the party on a sort of level with 
the peers. But the word magnates and 
proceres are used very largely in ancient 
language, and, down to the time of Ed- 
ward 111., comprehend the king's ordina- 
ry council as well as his barons. Nor 
can these, at any rate, be construed to 
pass an inheritance, which, in the grant 
of a private person, much more of the 
king, would require express words of 
limitation. In a single instance, the 
writ of summons to Sir Henry de Brom- 
flete (27 H. VI.), we find these remarka- 
bie words : Volumus enim vos et ha3re- 
des vestros masculos de corpore vestro 
legitime exeuntes barones de Vesey ex- 
istere. But this Sir Henry de Bromflete 
was the lineal heir of the ancient barony 
de Vesci.* And if it were true that the 
writ of summons conveyed a barony of 
itself, there seems no occasion to have 
introduced these extraordinary words of 
creation or revival. Indeed there is less 
necessity to urge these arguments from 
the nature of the writ, because the mod- 
ern doctrine, which is entirely opposite 
to what has here been suggested, asserts 
that no one is ennobled by the mere 
summons, unless he has rendered it op- 
erative by taking his seat in parliament ; 
distinguishing it in this from a patent of 
peerage,! which requires no act of the 

* West's Inquiry. Prynne, who takes rather 
lower ground than West, and was not aware of 
Sir Henry de Bromflete's descent, admits that a 
writ of summons to any one, naming him baron, or 
dominus, as Baroni de Greystoke, Domino de 
Furnival, did give an inheritable peerage ; not so a 
writ generally worded, naming the party knight 
or esquire, unless he held by barony. 

t Lord Abergavenny's case, 12 Coke's Reports ; 
and CoUins's Proceedings on claims of baronies by 
writ, p. 6L 



party for its completion. But this dis- 
tinction could be supported by nothing 
except long usage. If, however, we re- 
cur to the practice of former times, we 
shall find that no less than ninety-eight 
laymen were summoned once only to 
parliament, none of their names occur- 
ring afterward ; and fifty others two, 
three, or four times. Some were con- 
stantly summoned during their lives, 
none of whose posterity ever attained 
that honour.* The course of proceed- 
ing, therefore, previous to the accession 
of Henry VII., by no means warrants 
the doctrine which was held in the lat- 
ter end of Elizabeth's reign,t and has 
since been too fully estabhshed by re- 
peated precedents to be shaken by any 
reasoning. The foregoing observations 
relate to the more ancient history of our 
constitution, and to the plain matter of 
fact as to those times, without consider- 
ing what political cause there might be 
to prevent the crown from introducing 
occasional counsellors into the house of 
lords. 

It is manifest by many passages in 
these records, that bannerets Bannerets 
were frequently summoned to summon- 
the upper house of parliament, house^of 
constituting a distinct class in- lords. 
ferior to barons, though generally named 
together, and ultimately confounded with 
them. J Barons are distinguished by the 
appellation of Sire, bannerets have only 
that of Monsieur, as le Sire de Berkeley, 
le Sire de Fitzwalter, Monsieur Richard 
Scrop, Monsieur Richard Stafford. In 
the 7th of Richard II., Thomas Camoys 
having been elected knight of the shire 
for Surrey, the king addresses a writ to 
the sheriff, directing him to proceed to 
a new election, cum hujusmodi banne- 
retti ante haec tempora in milites comita- 
tus ratione alicujus parliament! eligi min- 
ims consueverunt. Camoys was sum- 
moned by writ to the same parliament. 
It has been inferred from hence by Sel- 
den that he was a baron, and that the 
word banneret is merely synonymous.^ 



* Prynne's 1st Register, p. 232. Elsynge, who 
strenuously contends against the writ of summons 
conferring an hereditary nobility, is of opinion that 
the party summoned was never omitted in subse- 
quent parliaments, and consequently was a peer 
for life, p. 43. But more regard is due to Prynne's 
latter inquiries. 

t Case of Willoughby, Collins, p. 8 : of Dacres, 
p. 41 : of Abergavenny, p. 119. But see the case 
of Grey de Ruthyn, p. 222 and 230, where the con 
trary position is stated by Selden upon better 
grounds. 

t Rot. Pari., vol.ii., p. 147, 309 ; vol. iii., p. 100, 
386, 424 ; vol. iv., p. 374. Rymer, t. vii., p. 161. 

Ij Selden's Works, vol. iii., p. 7C4. Selden' 



414 



EUROPE DURING THE MIDDLE AGES. 



[CtiiV. VIII. 



But this is contradicted by too many 
passages. Bannerets had so far been 
considered as commoners some years be- 
fore, that they could not be challenged 
on juries.* But they seem to have 
been more highly estimated at the date 
of this writ. 

The distinction however between bar- 
ons and bannerets died away by degrees. 
In the 2d of Henry VI., f Scrop of Bolton 
is called le Sire de Scrop ; a proof that 
he was then reckoned among the barons. 
The bannerets do not often appear after- 
ward by that appellation as members of 
the upper house. Bannerets, or, as they 
are called, banrents, are enumerated 
among the orders of Scottish nobility in 
the year 1428, when the statute directing 
the common lairds or tenants in capite to 
send representatives was enacted ; and 
a moderate historian justly calls them 
an intermediate order betwe.en the peers 
and lairds. J Perhaps a consideration of 
these facts, which have frequently been 
overlooked, may tend in some measure 
to explain the occasional discontinuance, 
or sometimes the entire cessation, of 
writs of summons to an individual or his 
descendants ; since we may conceive 
that bannerets, being of a dignity much 
inferior to that of barons, had no such 
inheritable nobility in their blood as ren- 
dered their parliamentary privileges a 
matter of right. But whether all those 
who, without any baronial tenure, receiv- 
^ ed their writs of summons to parliament 
belonged to the order of bannerets, I 
cannot pretend to affirm : though some 
passages in the rolls might rather lead to 
such a supposition. 

The second question relates to the right 
of suffrage possessed by these temporary 
members of the upper house. It might 
seem plausible certainly to conceive, that 
the real and ancient aristocracy would not 
permit their powers to be impaired by 
numbering the votes of such as the king 
might please to send among them, how- 
opinion that bannerets in the lords' house were the 
same as barons, may seem to call on me for some 
contrary authorities, in order to support my own 
assertion, besides the passages above quoted from 
the rolls, of which he would naturally be sup- 
posed a more competent judge. I refer therefore 
to Spelman's Glossary, p. 74; Whitelocke on Par- 
liamentary Writ, vol. 1., p. 313 ; and Elsynge's 
Method of holding parliaments, p. Co. 

* Puis un fut chalenge puree qu'il fut a ban- 
niere, et non allocatur, car s'll soit a banniere, et 
ne tient pas par baronie, il sera en I'assise. — Year- 
book, 22 Edw. III., fol. 18, a.apud West's Inquiry, 
p. 22. 

t Rot. Pari., vol. iv., p. 201. 

t Pinkerton's Hist, of Scotland, vol. i., p. 357 
and 365. 



ever they might allow them to assist in 
their debates. But I am much more in- 
clined to suppose that they were in all 
respects on an equality with other peers 
during their actual attendance in parlia- 
ment. For, 1. They arp summoned by 
the same writ as the rest, and their names 
are confused among them in the lists ;' 
whereas the judges and ordinary coun- 
sellors are called by a separate writ, vo- 
biscum et caeteris de consiho nostro, and 
their names are entered after those of 
the peers.* 2. Some, who do not appear 
to have held land-baronies, were con- 
stantly summoned from father to son, 
and thus became hereditary lords of par- 
liament, through a sort of prescriptive 
right, which probably was the foundation 
of extending the same privilege after- 
ward to the descendants of all who had 
once been summoned. There is no evi- 
dence that the family of Scrope, for ex- 
ample, which was eminent under Edward 
III. and subsequent kings, and gave rise 
to two branches, the lords of Bolton and 
Masham, inherited any territorial hon- 
our.f 3. It is very difficult to obtain any 
direct proof as to the right of voting, be- 
cause the rolls of parliament do not take 
notice of any debates ; but there happens 



* West, whose business it was to represent the 
barons by writ as mere assistants without suffrage, 
cites the writ to them rather disingenuously, as if 
it ran vobiscum et cum prelatis, magnatibus ac 
proceribus, omitting the important word caeteris, p. 
35. Prynne, however, from whom West has bor- 
rowed a great part of his arguments, does not seem 
to go the length of denying the right of suffrage 
to persons so summoned. — 1st Register, p. 237. 

t These descended from two persons, each na- 
med Geoffrey le Scrope, chief-justices of K. B. and 
C. B. at the beginning of Edward IH.'s reign. The 
name of one of them is once found among the bar- 
ons, but I presume this to have been an accident 
or mistake in the roll, as he is frequently mentioned 
afterward among the judges. Scrope, chief-jus- 
tice of K. B., was made a banneret in 14 E. Ill, 
He was the father of Henry Scrope of Masham, a 
considerable person in Edward III. and Richard 
II. 's government, whose grandson. Lord Scrope of 
Masham, was beheaded for a conspiracy against 
Henry V. There was a family of Scrupe as old 
as the reign of Henry II. ; but it is not clear, not- 
withstanding Dugdale's assertion, that the Scropes 
descended from them, or at least that they held 
the same lands : nor were the Scrupes barons, as 
appears by their paying a relief of only sixty marks 
for three knights' fees. — Dugdale's Baronage, p. 
654. 

The want of consistency in old records throws 
much additional difficulty over this intricate sub- 
ject. Thus Scrope of Masham, though certainly 
a baron, and tried next year by the peers, is called 
Chevalier in an instrument of 1 H. V. — Rymer, t. 
ix., p. 13. So, in the endictment against Sir John 
Oldcastle, he is constantly styled knight, though 
he had been summoned several times as Lord Cob- 
ham, in right of his wife, who inherited that bar- 
ony. — Rot. Pari,, vol. iv., p. 107. 



Part III.] 



ENGLISH CONSTITUTION. 



415 



to exist one remarkable passage, in which 
the suffrages of the lords are individual- 
ly specified. In the first parliament of 
Henry IV., they were requested by the 
Earl of Northumberland to declare what 
should be done with the late King Rich- 
ard. The lords then present agreed that 
he should be detained in safe custody; 
and on account of the importance of this 
matter, it seems to have been thought ne- 
cessary to enter their names upon the 
roll in these words : The names of the 
lords concurring in their answer to the 
said question here follow; to wit, the 
Archbishop of Canterbury, and fourteen 
other bishops ; seven abbots ; the Prince 
of Wales, the Duke of York, and six 
earls ; nineteen barons, styled thus : le 
Sire de Roos, or le Sire de Grey de Ru- 
thyn. Thus far the entry has nothing 
singular; but then follow these nine 
names : Monsieur Henry Percy, Mon- 
sieur Richard Scrop, le Sire Fitz-hugh, le 
Sire de Bergeveny, le Sire de Lomley, le 
Baron de Greystock, le Baron de Hilton, 
Monsieur Thomas Erpyngham, Chamber- 
layn. Monsieur Mayhewe Gournay. Of 
these nine, five were undoubtedly bar- 
ons, from whatever cause misplaced in 
order. Scrop was summoned by writ; 
but his title of Monsieur, by which he is 
invariably denominated, would of itself 
create a strong suspicion that he was no 
baron, and in another place we find him 
reckoned among the bannerets. The 
other three do not appear to have been 
summoned, their writs probably being 
lost. One of them. Sir Thomas Erpyng- 
ham, a statesman well known in the his- 
tory of those times, is said to have been 
a banneret ;* certainly he was not a bar- 
on. It is not unlikely that the two oth- 
ers, Henry Percy (Hotspur), and Gour- 
nay, an officer of the household, were 
also bannerets ; they cannot at least be 
supposed to be barons, neither were they 
ever summoned to any subsequent par- 
liament. Yet in the only record we pos- 
sess of votes actually given in the house 
of lords, they appear to have been reck- 
oned among the rest.f 

The next method of conferring an hon- 
Creation of ouv of peerage was by creation 
peers by in parliament. This was adopt- 
Btatute. g(j ijy Kfjvvard HI. in several in- 
stances, though always, I believe, for the 
higher titles of duke or earl. It is laid 
down by lawyers, that whatever the king 
is said, in an ancient record, to have done 
in full parliament, must be taken to have 

* Blomefield's Hist, of Norfolk, vol. iii., p. 645 
(foUo edit.). t Rot. Pari., v. iii., p. 427. 



proceeded from the whole legislature. 
As a question of fact, indeed, it might be 
doubted whether, in many proceedings 
where this expression is used, and espe- 
cially in the creation of peers, the assent 
of the commons was specifically and de- 
liberately given. It seems hardly con- 
sonant to the circumstances of their or- 
der under Edward III. to suppose their 
sanction necessary, in what seemed so 
little to concern their interest. Yet there 
is an instance, in the fortieth year of that 
prince, where the lords individually, and 
the commons Avilh one voice, are decla- 
red to have consented, at the king's re- 
quest, that the Lord de Coucy, who had 
married his daughter, and was already 
possessed of estates in England, might be 
raised to the dignity of an earl, whenev- 
er the king should determine Avhat earl- 
dom he would confer upon him.* Under 
Richard II., the marquisate of Dublin is 
granted to Vere by full consent of all the 
estates. But this instrument, besides the 
unusual name of dignity, contained an 
extensive jurisdiction and authority over 
Ireland.! In the same reign Lancaster 
was made Duke of Guienne, and the 
Duke of York's son created Earl of Rut- 
land, to hold during his father's hfe. 
The consent of the lords and commons is 
expressed in their patents, and they are 
entered upon the roll of parhament.f 
Henry V. created his brothers dukes of 
Bedford and Glocester, by request of the 
lords and commons.^ But the patent of 
Sir John Cornwall, in the 10th of Henry 
VI., declares him to be made Lord Fan- 
hope, "by consent of the lords, in the 
presence of the three estates of parlia- 
ment;" as if it were designed to show 
that the commons had not a legislative 
voice in the creation of peers. || 

The mention I have made of creating 
peers by act of parliament has And by 
partly anticipated the modern form patent. 
of letters patent, with which the other 
was nearly allied. The first instance of 
a barony conferred by patent was in the 
tenth year of Richard II., when Sir John 
Holt, a judge of the Common Pleas, w as 
created Lord Beauchamp of Kiddermin- 
ster. Holt's patent, however, passed 
while Richard was endeavouring to act 
in an arbitrary manner; and in fact he 
never sat in parliament, having been at- 
tainted in that of the next year by the 
name of Sir John Holt. In a number of 
subsequent patents down to the reign of 
Henry VII., the assent of parUament is 



Rot. Pari., vol. ii., p. 
Id., vol. iii., p. 20a. 
Id,, vol. iv., p. 17. 



290. 



t Id., p. 263, 264. 
II Id., p. 401. 



41G 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



expressed, though it frequently happens 
that no mention of it occurs in the par- 
liamentary roll. And, in some instances, 
the roll speaks to the consent of parlia- 
ment, where the patent itself is silent.* 

It is now perhaps scarcely known by 
Clergy sum- "i^^^Y persous not uuvcrsed in 
inoncd to the constitution of their coun- 
utte.id par- ^j-y^ jj^at, besides the bishops 
uamcru. ^^^^ baronial abbots, the infe- 
rior clergy were regularly summoned at 
every parliament. In the writ of sum- 
mons to a bishop, he is still directed to 
cause the dean of his cathedral church, 
the archdeacon of his diocess, with one 
proctor from the chapter of the former, 
and two from the body of his clergy, to 
attend with him at the place of meeting. 
This might, by an inobservant reader, be 
confounded with the summons to the 
convocation, which is composed of the 
same constituent parts, and, by modern 
usage, is made to assemble on the same 
day. But it may easily be distinguish- 
ed by this difference ; that the convoca- 
tion is provincial, and summoned by the 
metropolitans of Canterbury and York ; 
whereas the clause commonly denomi- 
nated praemunientes (from its first word), 
in the writ to each bishop, proceeds from 
the crown, and enjoins the attendance 
of the clergy at the national council of 
parliament.! 

The first unequivocal instance of rep- 
resentatives appearing for the lower 
clergy is in the year 1255, when they are 
expressly named by the author of the An- 
nals of Burton. J They preceded, there- 
fore, by a few years, the house of com- 
mons ; but the "introduction of each was 
founded upon the same principle. The 
king required the clergy's money,^ but 

* West's Inquiry, p. 65. This writer does not 
allow that the king possessed the prerogative of 
creating new peers without consent of parhament. 
But Prynne (1st Register, p. 225), who generally 
adopts the same theory of peerage as West, strong- 
ly asserts the contrary ; and the party views of the 
latter's treatise, which I mentioned above, should 
be kept in sight. It was his object to prove, that 
the pending bill to limit the members of the peer- 
age was conformable to the original constitution. 

t Hody's History of Convocations, p. 12. Dis- 
sertatio de antiqua et modcrna Synodi Anglican! 
constitutione, prefixed to Wilkins's Concilia, t. i. 

X 2 Gale, Scriptores Rer. Anglic, t. ii., p. 355. 
Hody, p. 345. Atterbury (Rights of Convocations, 
p. 295, 315) endeavours to show that the clergy had 
been represented in parliament from the conquest, 
as well as before it. Many of the passages he 
quotes are very inconclusive ; but possibly there 
may be some weight in one from Matthew Paris, 
ad ann. 1247, and two or three writs of the reign 
Df Henry III. 

1^ Hody, p. 381. Atterbury's Rights of Convo- 
;ations, p. 221. 



dared not take it without their consent. 
In the double parliament, if so we may 
call it, summoned in the eleventh of Ed- 
ward I. to meet at Northampton and 
York, and divided according to the two 
ecclesiastical provinces, the proctors of 
chapters for each province, but not those 
of the diocesan clergy, were summoned 
through a royal writ addressed to the 
archbishops. Upon account of the ab- 
sence of any deputies from the lower 
clergy, these assemblies refused to grant 
a subsidy. The proctors of both descrip- 
tions appear to have been summoned by 
the pra>munientes clause in the 22d, 23d, 
24th, 28th, and 35th years of the same 
king; but in some other parliaments of 
his reign the praemunientes clause is 
omitted.* The same irregularity contin- 
ued under his successor ; and the con- 
stant usage of inserting this clause in the 
bishop's writ is dated from the twenty- 
eighth of Edward Ill.f 

It is highly probable that Edward I., 
whose legislative mind was engaged in 
modelling the constitution on a compre- 
hensive scheme, designed to render the 
clergy an eff'ective branch of parliament, 
however their continual resistance may 
have defeated the accomplishment of this 
intention. J We find an entry upon the 
roll of his parliament at Carlisle, %)n 
taining a list of all the proctors deputed 
to it by the several diocesses of the king 
dom. Tliis may be reckoned a clear 
proof of their parliamentary attendance 
during his reign under the prajmunientes 
clause ; since the province of Canterbury 
could not have been present in convoca- 
tion at a city beyond its limits. i^ And 
indeed if we were to found our judgment 
merely on the language used in these 
writs, it would be hard to resist a very 
strange paradox, that the clergy were not 
only one of the three estates of the realm, 
but as essential a member of the legisla- 
ture by their representatives as the com- 
mons.! They are summoned in the ear- 

* Hody, p. 386. Atterbury, p. 222. 

t Hody, p. 391. 

% Gilbert's Hist, of Exchequer, p. 47. 

^ Rot. Pari., vol. i., p. 189. Atterbury, p. 229. 

11 The lower house of convocation, in 1547, ter- 
rified at the progress of reformation, petitioned 
that, " according to the tenour of the king's writ and 
the ancient customs of the realm, they might have 
room and place, and be associated with the com- 
mons in the nether house of this present parlia- 
ment, as members of the commonwealth and the 
king's most humble subjects." — Burnet's Hist, of 
Reformation, vol. ii., Appendix, No. 17. This as- 
sertion that the clergy had ever been associated as 
one body with the commons is not borne out by 
any thing that appears on our records, and is con 
tradict*^d by many passages. But it is said tbat 



Part III.] 



ENGLISH CONSTITUTION. 



417 



liest, year extant (23 E. I.), ad tractandum, 
ordinandum et faciendum nobiscum, et 
cum casteris prslatis, proceribus, ac aliis 
incolis regni nostri ; in thai of the next 
year, ad ordinandum de quantitate et 
modo subsidii ; in that of the twenty- 
eighth, ad faciendum et consentiendum 
his, qua? tunc de communi consiUo ordi- 
riari contigerit. In later times, it ran 
sometimes ad faciendum et consentien- 
dum, sometimes only ad consentiendum ; 
which, from the fifth of Richard II., has 
been the term invariably adopted.* Now, 
as it is usual to infer from the same words, 
when introduced into the writs for elec- 
tion of the commons, that they possessed 
an enacting power implied in the words 
ad faciendum, or at least to deduce the 
necessity of their assent from the words 
ad consentiendum, it should seem to fol- 
low that the clergy were invested, as a 
branch of the parliament, with rights no 
less extensive. It is to be considered 
how we can reconcile these apparent at- 
tributes of political power with the un- 
questionable facts, that almost all laws, 
even while they continued to attend, 
were passed without their concurrence, 
and that, after some time, they ceased 
altogether to comply with the writ.f 

The solution of this difficulty can only 
be found in that estrangement from the 
common law and the temporal courts, 
which the clergy throughout Europe 
were disposed to affect. In this coun- 
try, their ambition defeated its own ends ; 
and while they endeavoured by privileges 
and immunities to separate themselves 
from the people, they did not perceive 
that the line of demarcation thus strongly 
traced would cut them off from the sym- 
pathy of common interests. Every thing 
which they could call of ecclesiastical 
cognizance was drawn into their own 
courts ; while the administration of what 
they contemned as a barbarous system, 
the temporal law of the land, fell into the 
hands of lay judges. But these were 
men not less subtle, not less ambitious. 
Hot less attached to their profession than 
themselves ; and wielding, as they did in 
the courts of Westminster, the delegated 

the clergy were actually so united with the com- 
mons in the Irish parliament till the reformation. — 
Gilbert's Hist, of the Exchequer, p. 57. 
* Hody, p. 392. • 

■f The prajmunientes clause in a bishop's writ of 
summons was so far regarded down to the Reform- 
ation, that proctors were elected, and their names 
returned upon the writ ; though the clergy never 
attended from the beginning of the fifteenth cen- 
tury, and gave their money only in convocation. 
Since the Reformation, the clause has been pre- 
served for form merely in the writ. — Wilkins, Dis- 
sertatio, ubi supra. 

Dd 



sceptre of judicial sovereignty, tliey soon 
began to control the spiritual jurisdic- 
tion, and to establish the inherent su- 
premacy of the common law. From this 
time an inveterate animosity subsisted 
between the two courts, the vestiges of 
which have only been effaced by the lib- 
eral wisdom of modern ages. The gen- 
eral love of the common law, however, 
with the great weight of its professors in 
the king's council and in pcfrliament, kept 
the clergy in surprising subjection. None 
of our kings after Henry III. were big- 
ots ; and the constant tone of the com- 
mons serves to show, that the English 
nation was thoroughly averse to ecclesi- 
astical influence, whether of their own 
church or the see of Rome. 

It was natural therefore to withstand 
the interference of the clergy summoned 
to parliament in legislation, as much as 
that of the spiritual court in temporal ju- 
risdiction. With the ordinary subjects, 
indeed, of legislation they had little con- 
cern. The oppressions of the king's 
purveyors, or escheators, or officers of 
the forests, the abuses or defects of the 
common law, the regulations necessary 
for trading towns and seaports, were 
matters that touched them not, and to 
which their consent was never required. 
And, as they well knew there was no de- 
sign in summoning their attendance but 
to obtain money, it was with great re- 
luctance that they obeyed the royal writ, 
which was generally obliged to be en- 
forced by an archiepiscopal mandate.* 
Thus, instead of an assembly of deputies 
from an estate of the realm, tliey became 
a synod or convocation. And it seems 
probable that in most, if not all, instances 
where the clergy are said in the roll of 
parliament to have presented their peti- 
tions, or are otherwise mentioned as a 
deliberative body, we should suppose the 
convocation alone of the province of 
Canterbury to be intended.! For that of 
York seems to have been always consid- 
ered as inferior, and even ancillary to 

* Hody, p. 396, 403, &c. In 1314, the clergy 
protest even against the recital of the king's writ 
to the archbishop, directing him to summon the 
clergy of his province, in his letters mandatory, de- 
claring that the English clergy had not been ac- 
customed, nor ought by right, to be convoked by 
the king's authority. — Atterbury, p. 230. 

t Hody, p. 425. Atterbury, p. 42, 233. The 
latter seems to think that the clergy of both prov- 
inces never actually met in a national council or 
house of parliament, under the praemunienteswrit, 
after the reign of Edward II., though the proctors 
were duly returned. But Hody does not go quite 
so far, and Atterbury had a particular motive to 
enhance the influence of the convocation for Can 
terbury. 



418 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VHI. 



the greater province, voting subsidies, 
and even assenting to canons, without 
dehberation. in compUance with the ex- 
ample of Canterbury ;* the convocation 
of which province consequently assumed 
the importance of a national council. But 
in either point of view the proceedings 
of this ecclesiastical assembly, collateral 
in a certain sense to parliament, yet very 
intimately connected with it, whether 
sitting by viftue of the pra^munientes 
clause or otherwise, deserve some notice 
in a constitutional history. 

In the sixth year of Edward III., the 
proctors of the clergy are specially men- 
tioned as present at the speech pro- 
nounced by the king's commissioner, and 
retired, along with the prelates, to con- 
sult together upon the business submitted 
to their deliberation. They proposed 
accordingly a sentence of excommunica- 
tion against disturbers of the peace, which 
was assented to by the lords and com- 
mons. The clergy are said afterward to 
have had leave, as well as the knights, 
citizens, and burgesses, to return to their 
homes ; the prelates and peers continu- 
ing with the king.f This appearance of 
the clergy in full parliament is not per- 
haps so decisively proved by any later 
record. But in the eighteenth of the 
same reign several petitions of the clergy 
are granted by the king and his council, 
entered on the roll of parliament, and 
even the statute roll, and in some re- 
spects are still part of our law. J To 
these it seems highly probable that the 
commons gave no assent ; and they may 
be reckoned among the other infringe- 
ments of their legislative rights. It is 
remarkable that in the same parliament 
the commons, as if apprehensive of what 
was in preparation, besought the king 
that no petition of the clergy might be 
granted till he and his council should 
have considered whether it would turn to 
the prejudice of the lords or commons.^ 
A series of petitions from the clergy, 
in the twenty-fifth of Edward III., had 
not probably any r.8al assent of the com- 
mons, though it is once mentioned in the 
enacting words, when they were drawn 
into a statute. || Indeed, the petitions cor- 
respond so little with the general senti- 
ment of hostility towards ecclesiastical 

* AUerbury, p. 46. 

t Rot. Pari., vol. ii., p. 64, 65. 

t 18 E. III., Stat. 3. Rot. Pari., vol. ii., p. 151. 
This is the parliament in which it is very doubtful 
whether any deputies from cities and boroughs 
had a place. The pretended statutes were there- 
fore every way null ; being falsely imputed to an 
incomplete parliament. 

^ Ibid. II 25 E. III., Stat. 3. 



privileges manifested by the lower house 
of parliament, that they would not easily 
have obtained its acquiescence. The 
convocation of the province of Canterbu- 
ry presented several petitions in the fif- 
tieth year of the same king, to which they 
received an assenting answer ; but they 
are not found in the statute-book. This 
however produced the following remon- 
strance from the commons at the next 
parliament : " Also the said commons be- 
seech their lord the king, that no statute 
nor ordinance be made at the petition of 
the clergy, unless by assent of your com- 
mons ; and that your commons be not 
bound by any constitutions which they 
make for their own profit without the 
commons' assent. For they will not be 
bound by any of your statutes or ordi- 
nances made without their assent."* The 
king evaded a direct answer to this peti- 
tion. But the province of Canterbury 
did not the less present their own griev- 
ances to the king in that parliament, and 
two among the statutes of the year seem 
to be founded upon no other authority-f 
In the first session of Richard II., the 
prelates and clergy of both provinces are 
said to have presented their schedule of 
petitions, which appear upon the roll, and 
three of which are the foundation of stat- 
utes unassented to in all probability by the 
commons.! If the clergy of both prov- 
inces were actually present, as is here 
asserted, it must of course have been as 
a house of parliament, and not of convo- 
cation. It rather seems, so far as we 
can trust to the phraseology of records, 
that the clergy sat also in a national as- 
sembly under the king's writ in the sec- 
ond year of the same king.i^i Upon other 
occasions during the same reign, where 
the representatives of the clergy are al- 
luded to as a deliberative body, sitting at 
the same time with the parliament, it is 
impossible to ascertain its constitution ; 
and indeed, even from those already cited, 
we cannot draw any positive inference. || 

* P. 368. The word «Aev is ambiguous ; White- 
locke (on Parliamentary Writ, vol. ii., p. 346) in- 
terprets it of the commons : I should rather sup- 
pose it to mean the clergy. 

t 50 E. III., c. 4 and 5. 

j Rot. Pari., vol. iii., p. 25. A nostra tres ex- 
cellent seigneur le roy suppliant humblement sea 
devotes oratours, les prelats et la clergie de la 
provinc? de Canterbirs et d'Everwyk, stat. 1 R. II. 
c. 13, 14, 15. But see Hody, p. 425 ; Atterbury, 
p. 329. (} Rot. Pari, vol. iii., p. 37. 

!l It might be argued, from a passage in the par- 
liament-roll of 21 R. II., that the clergy of both 
provinces were not only present, but that they were 
accounted an essential part of parhament in tem- 
poral matters, which is contrary to the whole ten- 
our of our laws. The commons are there said 
I to have prayed, that " whereas many judgment* 



Part III.] 



ENGLISH CONSTITUTION. 



419 



But whether in convocation or in parlia- 
ment, they certainly formed a legislative 
council in ecclesiastical matters, by the 
advice and consent of which alone, with- 
out that of the commons (I can say noth- 
ing as to the lords), Edward III., and 
even Richard II., enacted laws to bind the 
laity. I have mentioned in a different 
place a still more conspicuous instance 
of this assumed prerogative ; namely, the 
memorable statute against heresy in the 
second of Henry IV. ; which can hardly 
be deemed any thing else than an in- 
fringement of the rights of parliament, 
more clearly established at that time than 
at the accession of Richard II. Petitions 
of the commons relative to spiritual mat- 
ters, however frequently proposed, in few 
or no instances obtained the king's assent 
so as to pass into statutes, unless ap- 
proved by the convocation.* But, on the 
other hand, scarcely any temporal laws 
appear to have passed by the concurrence 
of the clergy. Two instances only, so 
far as I know, are on record : the parlia- 
ment held in the II th of Richard II. is 
annulled by that in the twenty-first of his 
reign, " with the assent of the lords spir- 
itual and temporal, and the proctors of the 
clergy^ and the commons ;"f and the 
statute entailing the crown on the chil- 

and ordinances formerly made in parliament had 
been annulled, because the estate of clergy had not 
been present thereat, the prelates and clergy might 
make a proxy with sufficient power to consent in 
their name to all things done ni this parliament. 
Whereupon the spiritual lords agreed to intrust 
their powers to Sir Thomas Percy, and gave him 
a procuration, commencmg in the following words : 
' Nos Thomas Cantuar' et Robertus Ebor' archi- 
episcopi, ac prslati et clerus utriitsque provincia Can- 
tuar^ et Ebor'' jure ecclesianim nostrarum et temporali- 
um earundem habentes jus interessendi in singulis par- 
liamentis domini nostri regis et regui Anglise pro 
tempore celebrandis, necnon tractandi et expediendi 
in eisdem quantum ad singula in instanti parlia- 
mento pro statu et honore domini nostri regis, nec- 
non regalise suae, ac quiete, pace, et tranquiilitate 
regni judicialiter justificandis, venerabili viro do- 
mmo Thomaj de Percy militi, nostram plenarie 
committimuS potestatem.' " It may be perceived 
by these expressions, and more unequivocally by 
the nature of the case, that it was the judicial 
power of parliament which the spiritual lords del- 
egated to their proxy. Many impeachments for 
capital offences were coming on, at which, by 
their canons, the bishops could not assist. But it 
can never be conceived that the inferior clergy 
had any share in this high judicature. And, upon 
looking attentively at the words above printed in 
italics, it will be evident that the spiritual lords 
holding by barony are the only persons designated; 
whatever may have been meant by the smgular 
phrase, as applied to them, clerus utriusque pro- 
vinciae. — Rot. Pari., vol. iii., p. 348. 

* Atterbury, p. 346. 

•t 21 Rich. II., c. 12. Burnet's Hist, of Refor- 
mation (vol. ii., p. 47) led me to this act which I 
had overlooked. 
Dd2 



dren of Henry IV. is said to be enacted 

on the petition of the prelates, nobles, 
clergy, and commons.* Both these were 
stronger exertions of legislative authority 
than ordinary acts of parliament, and 
were very likely to be questioned in suc- 
ceeding times. 

The supreme judicature, which had 
been exercised by the king's j„,i,dictior, 
court, was diverted, about the of the king's 
reign of John, into three chan- council, 
nels ; the tribunals of King's Bench, 
Common Pleas, and the Exchequer.! 
These became the regular fountains of 
justice, which soon almost absorbed the 
provincial jurisdictions of the sheriff and 
lord of manor. But the original institu- 
tion, having been designed for ends of 
state, police, and revenue, full as much 
as for the determination of private suits, 
still preserved the most eminent parts 
of its authority. For the king's ordinary 
or privy council, which is the usual style 
from the reign of Edward I., seems to 
have been no other than the king's court 
(curia regis) of older times, being com- 
posed of the same persons, and having, 
in a principal degree, the same subjects 
of deliberation. It consisted of the chief 
ministers ; as the chancellor, treasurer, 
lord steward, lord admiral, lord marshal, 
the keeper of the privy seal, the cham- 
berlain, treasurer and comptroller of the 
household, the chancellor of the exche- 
quer, the master of the wardrobe ; and 
of the judges, king's sergeant and attor- 
ney-general, the master of the rolls, and 
justices in eyre, who at that time were 
not the same as the judges at Westmin- 
ster. When all these were called togeth- 
er, it was a full council; but where the 
business was of a more contracted nature, 
those only who were fittest to advise 
were summoned ; the chancellor and 
judges, for matters of law ; the officers 
of state for what concerned the revenue 
or household. 

The business of this council, out of 
parliament, may be reduced to two heads; 
its deliberative ofiice, as a council of ad- 
vice, and its decisive power of jurisdic- 
tion. With respect to the first, it obvi- 
otisly comprehended all subjects of polit- 
ical deliberation, which were usually re- 
ferred to it by the king : this being in fact 
the administration or governing council of 
state, the distinction of a cabinet being in- 



* Rot. Pari., vol. iii., p. 582. Atterbury, p. 61. 

t The ensuing sketch of the jurisdiction exer- 
cised by the king's council has beenchietly derived 
from Sir Matthew Hale's Treatise of the Juris- 
diction of the Lords' House in Parliament, publish- 
ed by Mr. Hargrave. 



420 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII 



troduced in comparatively modern times. 
But there were likewise a vast number 
of petitions continually presented to the 
council, upon which they proceeded no 
farther than to sort, as it were, and for- 
ward them by endorsement to the proper 
courts, or advise the suiter what remedy 
he had to seek. Thus some petitions 
are answered, " this cannot be done 
without a nevv^ law ;" some were turned 
over to the regular court, as the chancery 
or king's bench ; some of greater mo- 
ment were endorsed to be heard " before 
the great council;" some, concerning 
the king's interest, were referred to the 
chancery, or select persons of the coun- 
cil. 

The coercive authority exercised by 
this standing council of the king was far 
more important. It may be divided into 
acts legislative and judicial. As for the 
first, many ordinances were made in 
council ; sometimes upon request of the 
commons in parliament, who felt them- 
selves better qualified to state a griev- 
ance than a remedy; sometimes without 
any pretence, unless the usage of govern- 
ment, in the infancy of our constitution, 
may be thought to afford one. These were 
always of a temporary or partial nature, 
and were considered as regulations not 
sufficiently important to demand a new 
statute. Thus, in the second year of Rich- 
ard II., the council, after hearing read the 
statute-roll of an act recently passed, 
conferring a criminal jurisdiction in cer- 
tain cases upon justices of the peace, de- 
clared that the intention of parliament, 
though not clearly expressed therein, had 
been to extend that jurisdiction to certain 
other cases omitted, which accordingly 
they caused to be inserted in the commis- 
sions made to these justices under the 
great seal.* But they frequently so 
much exceeded what the growing spirit 
of public liberty would permit, that it 
gave rise to complaint in parliament. 
The commons petition, in 13 R. II., that 
" neither the chancellor nor the king's 
council, after the close of parliament, 
may make any ordinance against the 
common law, or the ancient customs of 
the land, or the statutes made heretofore 
or to be made in this parliament ; but 
that the common law have its course for 
all the people, and no judgment be ren- 
dered without due legal process." The 
king answers, " Let it be done as has 
been usual heretofore, saving the prerog- 
ative ; and if any one is aggrieved, let 
him show it specially, and right shall be 
done him."t This unsatisfactory an- 



* Rot. Pari., vol. iii., p. 84. 



Id., p. 266. 



swer proves the arbitrary spirit in which 
Richard was determined to govern. 

The judicial power of the council was in 
some instances founded upon particular 
acts of parliament, giving it power to hear 
and determine certain causes. Many pe- 
titions likewise were referred to it from 
parliament, especially where they were 
left unanswered by reason of a dissolu- 
tion. But, independently of this dele- 
gated authority, it is certain that the 
king's council did anciently exercise, as 
well out of parliament as in it, a very 
great jurisdiction, both in causes crimi- 
nal and civil. Some, however, have con- 
tended, that whatever they did in this 
respect was illegal, and an encroachment 
upon the common law and Magna Charta. 
And be the common law what it may, it 
seems an indisputable violation of the 
charter, in its most admirable and essen- 
tial article, to drag men in questions of 
their freehold or liberty before a tribu- 
nal which neither granted them a trial 
by their peers, nor always respected the 
law of the land. Against this usurpation 
the patriots ftf those times never ceased 
to lift their voices. A statute of the fifth 
year of Edward III. provides that no 
man shall be attached, nor his property 
seized into the king's hands against the 
form of the great charter and the law of 
the land. In the twenty-fifth of the same 
king, it was enacted, that " none shall be 
taken by petition or suggestion to the 
king or his council, unless it be by en- 
dictment or presentment, or by writ ori 
ginal at the common law, nor shall be put 
out of his franchise or freehold, unless 
he be duly put to answer, and forejudged 
of the same by due course of law."* 
This was repeated in a short act of the 
twenty-eighth of his reign ;t but both, in 
all probability, were treated with neglect ; 
for another was passed some years after- 
ward, providing that no man shall be put 
to answer witliout presentment before 
justices, or matter of record, or by due 
process and writ original according to the 
old law of the land. The answer to the 
petition whereon this statute is grounded, 



* 25 E. III., Stat. 5, c. 4. See the petition Rot. 
Pari., vol. ii., p. 228, which extends farther than 
the king's answer or the statute. Probably this 
fifth statute of the 25th of Edward III. is the most 
extensively beneficial act in the whole body of our 
laws. It established certainty in treasons, regu- 
lated purveyance, prohibited arbitrary imprison- 
ment, and the determination of pleas of freehold 
before the council, took away the compulsory find- 
ing of men-at-arms and other troops, confirmed the 
reasonable aid of the king's tenants fixed by 3 E. 
I., and provided that the king's protection should 
not hinder civil process or execution. 

t 28 E. III., C. 3. 



Part III.] 



ENGLISH CONSTITUTION. 



421 



in the parliament-roll, expressly declares 
this to be an article of the great charter.* 
Nothing, however, would prevail on the 
council to surrender so eminent a power, 
and, though usurped, yet of so long a 
continuance. Cases of arbitrary impris- 
onment frequently occurred, and were 
remonstrated against by the commons. 
The right of every freeman in that car- 
dinal point was as indubitable, legally 
speaking, as at this day ; but the courts 
of law were afraid to exercise their re- 
medial functions in defiance of so power- 
ful a tribunal. After the accession of 
the Lancastrian family, these, like other 
grievances, became rather less frequent ; 
but the commons remonstrate several 
times, even in the minority of Henry VI., 
against the council's interference in mat- 
ters cognizable at common law.f In 
these later times, the civil jurisdiction 
of the council was principally exercised 
in conjunction with the chancery, and 
accordingly they are generally named 
together in the complaint. The chan- 
cellor having the great seal in his custody, 
the council usually borrowed its process 
from his court. This was returnable into 
chancery even where the business was 
depending before the council. Nor were 
the two jurisdictions less intimately allied 
in their character ; each being of an equi- 
table nature ; and equity, as then prac- 
tised, being little less than innovation and 
encroachment on the course of law. 
This part, long since the most important, 
of the chancellor's judicial function, can- 
not be traced beyond the time of Richard 
II., when the practice of feoffments to 
uses having been introduced, without 
any legal remedy to secure the cestui 



» 42 E. III., c. 3, and Rot. Pari., vol. ii., p. 295. 
It is not surprising that the king's council should 
have persisted m these transgressions of their law- 
ful authority, when we find a similar jurisdiction 
usurped by the oilicers of inferior persons. Com- 
plaint is made in the 18th of Richard II., that men 
were compelled to answer before the council of di- 
vers lords and ladies, for their freeholds and other 
matters cognizable at common law, and a remedy 
for this abuse is given by petition in chancery, stat. 
15 R. II., c. 12. This act is confirmed with a pen- 
alty on Its contraveners the next year.— 16 R. II., 
c. 2. The private jails which some lords were per- 
mitted by law to possess, and for which there was 
always a provision in their castles, enabled them to 
render this oppressive jurisdiction effectual. 

t Rot. Pari., 17 K. II.. vol, lii., p. 319; 4 H. IV., 
p 507 ; 1 H. VI., vol. iv., p. 189 ; 3 H. VI., p. 292 ; 
8 H. VI,, p. 343 ; 10 H. VI., p. 403 ; 15 H. VI., p. 
601. To one of these (10 H. VI.), "that none 
ehould be put to answer for his freehold m parlia- 
ment, nor before any court or council where such 
things are not cognizable by the law of the land," 
the king gave a denial. As it was less usual to 
refuse promises of this kind than to forget them 
afterward, I do not understand the motive of this. 



que use, or usufructuary, against his fe- 
offees, the court of chancery undertook 
to enforce this species of contract by 
process of its own.* 

Such was the nature of the king's ordi- 
nary council in itself, as the organ of his 
executive sovereignty ; and such the ju- 
risdiction which it habitually exercised. 
But it is also to be considered in its rela- 
tion to the parliament, during whose ses- 
sion, either singly, or in conjunction with 
the lords' house, it was particularly con- 
spicuous. The great officers of state, 
whether peers or not, the judges, the 
king's sergeant, and attorney-general, 
were, from the earliest times, as the 
latter still continue to be, summoned by 
special writs to the upper house. But 
while the writ of a peer runs, ad tractan- 
dum nobiscum et cum ceteris prslatis, * 
magnatibus et proceribus ; that directed 
to one of the judges is only, ad tractan- 
dum nobiscum et cum cseteris de consilio 
nostro ; and the seats of the latter are 
upon the woolsacks at one extremity of 
the house. 

In the reigns of Edward I. and II., the 
council appear to have been the regular 
advisers of the king in passing laws, to 
which the houses of parliament had as- 
sented. The preambles of most statutes 
during this period express their concur- 
rence. Thus, the statute Westm. I. is 
said to be the act of the king, by his 
council, and by the assent of archbishops, 
bishops, abbots, priors, earls, barons, and 
all the commonalty of the realm being 
hither summoned. The statute of es- 
cheators, 29 E. I., is said to be agreed by 
the council, enumerating their names, all 
whom appear to be judges or public offi- 
cers. Still more striking conclusions are 
to be drawn from the petitions addressed 
to the council by both houses of parlia- 
ment. In the 8th of Edward II. there 
are four petitions from the commons to 
tlie king and his council, one from the 



* Hale's Jurisdiction of Lords' House, p. 46. 
Coke, 2 Inst., p. 5.53. The last author places this 
a little later. There is a petition of the commons, 
in the roll of the 4th of Henry IV., p. 511, that 
whereas many grantees and feoffees in trust for 
their grantors and feoffers, alienate or charge the 
tenements granted, in ivhich case there is no remedy, 
unless one is ordered by parliament, that the king 
and lords would provide a remedy. This petition 
is referred to the king's council to advise of a rem- 
edy against the ensuing parliament. It may per- 
haps be inferred from hence, that the writ of sub- 
poena out of chancery had not yet been applied to 
protect the cestui que use. But it is equally pos- 
sible that the commons, being disinclined to what 
they would deem an illegal innovation, were en- 
deavouring to reduce these fiduciary estates withia 
the pale of the common law, as was afterward 
done by the statute of uses. 



422 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



lords alone, and one in which both appear 
to have joined. Later parliaments of the 
same reign present us with several more 
instances of the like nature. Thus, in 18 
E. II., a petition begins : " To our lord 
the king, and to his council, the arch- 
bishops, bishops, prelates, earls, barons, 
and others of the commonalty of Eng- 
land, show," &c.* 

But from the beginning of Edward 
III.'s reign, it seems that the council and 
the lords' house in parliament were often 
blended together into one assembly. 
This was denominated the great council, 
being the lords spiritual and temporal, 
with the king's ordinary council annexed 
to them, as » council within a council. 
And even in much earlier times, the 
lords, as hereditary counsellors, were, 
either whenever they thought fit to at- 
tend, or on special summonses by the 
king (it is hard to say which), assistant 
members of this council, both for advice 
and for jurisdiction. This double capa- 
city of the peerage, as members of the 
parliament or legislative assembly, and 
of the deliberative and judicial council, 
throws a very great obscurity over the 
subject. However, we find that private 
petitions for redress were, even under 
Edward I., presented to the lords in par- 
liament as much as to the ordinary coun- 
cil. The parliament was considered a 
high court of justice, where relief was to 
be given in cases where the course of 
law was obstructed, as well as where it 
was defective. Hence the intermission 
of parliaments was looked upon as a de- 
lay of justice, and their annual meeting 
is demanded upon that ground. " The 
king," says Fleta, " has his court in his 
council, in his parliaments, in the pres- 
ence of bishops, earls, barons, lords, and 
other wise men, where the doubtful cases 
of judgments are resolved, and new rem- 
edies are provided against new injuries, 
and justice is rendered to every man ac- 
cording to his desert."! In the third year 
of Edward II., receivers of petitions 
began to be appointed at the opening of 
every parliament, who usually transmit- 
ted them to the ordinary, but in some in- 
stances to the great council. These re- 
ceivers were commonly three for Eng- 
land, and three for Ireland, Wales, Gas- 
cony, and other foreign dominions. 
There were likewise two corresponding 
classes of auditors, or triers of petitions. 
These consisted partly of bishops or 
peers, partly of judges and other mem- 
bers of the council; and they seem to 

♦ Rot. Pari, V. i., p. 416. t Id., 1. ii.. c. 2. 



have been instituted m order to disbur- 
den the council, by giving answers to 
some petitions. But about the middle of 
Edward III.'s time they ceased to act 
juridically in this respect, and confined 
themselves to transmitting petitions to 
the lords of the council. 

The great council, according to the def- 
inition we have given, consisted of the 
lords spiritual and temporal, in conjunc- 
tion with the ordinary council, or, in oth- 
er words, of all who were severally sum- 
moned to parliament, exercised a consid- 
erable jurisdiction, as well civil as crim- 
inal. In this jurisdiction, it is the opin- 
ion of Sir M. Hale that the council, 
though not peers, had right of suffrage ; 
an opinion very probable, when we rec- 
ollect that the council, by themselves, 
both in and out of parliament, possessed, 
in fact, a judicial authority little inferior; 
and that the king's delegated sovereignty 
in the administration of justice, rather 
than any intrinsic right of the peerage, 
is the foundation on which the judicature 
of the lords must be supported. But in 
the time of Edward III. or Richard II., 
the lords, by their ascendency, threw the 
judges and rest of the council into shade, 
and took the decisive jurisdiction entirely 
to themselves, making use of their for- 
mer colleagues but as assistants and ad- 
visers, as they still continue to be held 
in all the judicial proceedings of that 
house. 

Those statutes which restrain the 
king's ordinary council from disturbing 
men in their freehold rights, or question- 
ing them for misdemeanors, have an 
equal application to the lords' house in 
parliament, though we do not frequently 
meet with complaints of the encroach- 
ments made by that assembly. There was, 
however, one class of cases tacitly ex- 
cluded from the operation of those acts, 
in which the coercive jurisdiction of this 
high tribimal had great convenience ; 
namely, where the ordinary course of 
justice was so much obstructed by the 
defending party, through riots, combina- 
tions of maintenance, or overawing influ- 
ence, that no inferior court would find its 
process obeyed. Those ages, disfigured 
in their quietest season by rapine and 
oppression, afforded no small number of 
cases that called for this interposition of 
a paramount authority.* They do not 



* This is remarkably expressed in one of the 
articles agreed in parliament 8 H. VI., for the reg- 
ulation of the council. " Item, that alle the billes 
that comprehend matters terminable atte the com- 
mon lavve, shall be remitted ther to be determin- 
ed ; but if so be that the discresiou of the coun- 



Part III.] 



ENGLISH CONSTITUTION. 



423 



occur so frequently, however, in the rolls 
of parhament after the reign of Henry 
IV.; whether this be attributed to the 
gradual course of civilization, and to 
the comparative prosperity wliich Eng- 
land enjoyed under the line of Lancaster, 
or rather to the discontinuance of the 
lords' jurisdiction. Another indubitable 
branch of this jurisdiction was in writs 
of error : but it may be observed, that 
their determination was very frequently 
left to a select committee of peers and 
counsellors. These, too, cease almost 
entirely with Henry IV. ; and were 
scarcely revived till the accession of 
James 1. 

Some instances occur in the reign of 
Edward HI., where records have been 
brought into parliament, and annulled 
with assent of the commons as well as 
the rest of the legislature.* But these 
were attainders of treason, which it 
seemed gracious and solemn to reverse 
in the most authentic manner. Certainly 
the commons had neither by the nature 
of our constitution, nor the practice of 
parliament, any right of intermeddling in 
judicature ; save where something was 
required beyond the existing law, or 
where, as in the statute of treasons, an 
authority of that kind was particularly 
reserved to both houses. This is fully 
acknowledged by themselves in tlie first 
year of Henry IV. f But their influence 
upon the balance of government became 
so commanding in a few years afterward, 
that they contrived, as has been men- 
tioned already, to have petitions directed 
to them rather than to the lords or coun- 
cil, and to transmit them either with a 
tacit approbation, or in the form of acts, 
to the upper house. Perhaps this en- 
croachment of the commons may have 
contributed to the disuse of the lords' ju- 
risdiction, who would rather relinquish 
their ancient and honourable, but labori- 
ous function, than share it with such bold 
us'Tiiers. 

seill fele to grete myght on that o syde, and un- 
myght on that other, or elles other cause resona- 
ble yat shal move him." — Rot. Pari., vol. iv., 
p. 34:5. 

* The judgment against Mortimer was reversed 
at the suit of his son, 28 E. III., because he had 
not been put on his trial. The peers had adjudged 
him to death in his absence, upon common notwri- 
ety of his guilt.— 4 E. III., p. 53. In the same 
session of 28 E. III., the Earl of Arundel's attain- 
der was also reversed, which had passed in 1 E. 
III., when Mortimer was at the height of his pow- 
er. These precedents, taken together, seem to 
have resulted from no partiality, but a true sense 
of justice in respect of treasons, animated by the 
recent statute. — Rot. Pari, vol. ii., p. 256. 

t Rot. Pari., vol. iii., p. 427. 



Although the restraining hand of par- 
liament was continually grow- General char- 
ing more effectual, and the acterofthe 
notions of legal right acqui- ^ 0""^^"* 
ring more precision from the ages. 
time of Magna Charta to the civil wars 
under Henry VI., we may justly say, that 
the general tone of administration was 
not a little arbitrary. The whole fabric 
of English liberty rose step by step, 
through much toil and many sacrifices ; 
each generation adding some new secu- 
rity to the work, and trusting that pos- 
terity would perfect the labour as well 
as enjoy the reward. A time perhaps 
was even then foreseen, in the visions 
of generous hope, by the brave knights 
of parliament, and by the sober sages 
of justice, when the proudest ministers 
of the crown should recoil from those 
barriers which were then daily pushed 
aside with impunity. 

There is a material distinction to be ta- 
ken between the exercise of the king's 
undeniable prerogative, however repug- 
nant to our improved principles of free- 
dom, and the abuse or extension of it to 
oppressive purposes. For we cannot 
fairly consider as part of our ancient 
constitution what the parliament was 
perpetually remonstrating against, and 
the statute-book is full of enactments to 
repress. Doubtless the continual acqui- 
escence of a nation in arbitrary govern- 
ment may ultimately destroy all privi- 
leges of positive institution, and leave 
them to recover, by such means as op- 
portunity shall offer, the natural and im- 
prescriptible rights for which human so- 
cieties were established. And this may 
perhaps be the case at present with many 
European kingdoms. But it would be 
necessary to shut our eyes with deliber- 
ate prejudice against the whole tenour 
of the most unquestionable authorities, 
against the petitions of the commons, the 
acts of the legislature, the testimony of 
historians and lawyers, before we could 
assert that England acquiesced in those 
abuses and oppressions, which it must be 
owned she was unable fully to prevent. 

The word prerogative is of a peculiar 
import, and scarcely understood by those 
who come from the studies of political 
philosophy. We cannot define it by any 
theory of executive functions. All these 
may be comprehended in it, but also a 
great deal more. It is best perhaps to be 
understood by its derivation; and has 
been said to be that law in case of the 
king* which is law in no case of the sub- 

* Blackstone's Com. from Finch, vol. i., c. 7. 



424 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII, 



ject. Of the higher and more sovereign 
prerogatives 1 shall here say nothing : 
they result from the nature of a mon- 
archy, and have nothing very peculiar in 
their character. But the smaller rights 
of the crown show better the original 
lineaments of our constitution. It is 
said commonly enough, that all preroga- 
tives are given for the subject's good. I 
must confess that no part of this asser- 
tion corresponds with my view of the 
subject. It neither appears to me that 
these prerogatives were ever given, nor 
that they necessarily redound to the 
subject's good. Prerogative, in its old 
sense, might be defined an advantage ob- 
tained by the crown over the subject, 
in cases where their interests came into 
competition, by reason of its greater 
strength. This sprang from the nature 
of the Norman government, which rath- 
er resembled a scramble of wild beasts, 
where the strongest takes the best share, 
than a system founded upon principles of 
common utility. And, modified as the 
exercise of most prerogatives has been 
by the more liberal tone which now per- 
vades our course of government, Avho- 
ever attends to the common practice of 
courts of justice, and, still more, whoev- 
er consults the law-books, will not only 
be astonished at their extent and multi- 
plicity, but very frequently at their in- 
justice and severity. 

The real prerogatives that might for- 
rurvey- merly be exerted were sometimes 
ance. of SO injurious a nature, that we 
can hardly separate them from their 
abuse : a striking instance is that of pur- 
veyance, which will at once illustrate the 
definition above given of a prerogative, 
the limits within which it was to be ex- 
ercised, and its tendency to transgress 
them. This was a right of purchasing 
whatever was necessary for the king's 
household, at a fair price, in preference 
to every competitor, and without the con- 
sent of the owner. By the same pre- 
rogative, carriages and horses were im- 
pressed for the king's journeys, and 
lodgings provided for his attendants. 
This was defended on a pretext of neces- 
sity, or at least of great convenience 
to the sovereign, and was both of high 
antiquity and universal practice through- 
out Europe. But the royal purveyors 
had the utmost temptation, and doubt- 
less no small store of precedents, to 
stretch this power beyond its legal 
boundary ; and not only to fix their own 
price too low, but to seize what they 
wanted without any payment at all, or 
with tallies which were carried in vain 



to an empty exchequer.* This gave 
rise to a number of petitions from the 
commons, upon which statutes were 
often framed ; but the evil was almost 
incurable in its nature, and never ceased 
till tliat prerogative was itself abolished. 
Purveyance, as I have already said, may 
serve to distinguish the defects from the 
abuses of our constitution. It was a re- 
proach to the law, that men should be 
compelled to send their goods without 
their consent ; it was a reproach to the 
administration, that they were deprived 
of them without payment. 

The right of purchasing men's goods 
for the use of the king was extended by 
a sort of analogy to their labour. Thus 
p]dward III. announces to all sherifls, that 
William of Walsingham had a commis- 
sion to collect as many painters as might 
sufiice for " our works in St. Stephen's 
chapel, Westminster, to be at our wages 
as long as shall be necessary ;" and to 
arrest and keep in prison all who should 
refuse or be refractory ; and enjoins them 
to lend their assistance.! Windsor Cas- 
tle owes its massive magnificence to la- 
bourers impressed from every part of the 
kingdom. There is even a commission 
from Edward IV. to take as many work- 
men in gold as were wanting, and em- 
ploy them at the king's cost upon the 
trappings of himself and his household. J 

Another class of abuses intimately 
connected with unquestionable, Abuses of 
though oppressive, rights of the feudal 
crown, originated in the feudal '"'g'"^- 
tenure which bound all the lands of the 
kingdom. The king had indisputably a 
right to the wardship of his tenants in 
chivalry, and to the escheats or forfeit- 
ures of persons dying without heirs or 
attainted for treason. But his officers, un- 
der pretence of wardship, took posses- 
sion of lands not held immediately of the 



* Letters are directed to all the sheritTs, 2 
Edw. I., enjoining them to send up a certain num- 
ber of beeves, sheep, capons, &c. for the king's 
coronation. — Rymer, vol. ii., p. 21. By the statute 
21 Edw. III., c. 12, goods taken by the purveyors 
were to be paid for on the spot if under twenty 
shillings value, or within three months time if 
above that value. But it is not to be imagined 
that this law was or could be observed. 

Edward III., impelled by the exigences of his 
French war, went still greater lengths, and seized 
large quantities of wool, which he sold beyond 
sea, as well as provisions for the supply of his ar- 
my. In both cases the proprietors had tallies, or 
other securities ; but their despair of obtaining 
payment gave rise, in 1338, to an insurrection. 
There is a singular apologetical letter of Edward 
to the archbishops on this occasion. — Rymer, t. v., 
p. 10. See also p. 73, and Knyghton, col. 2570. 

t Rymer^ t. vi., p. 417. t Id., t. xi., p. 852, 



Paht III.] 



ENGLISH CONSTITUTION. 



42S 



crown, claimed escheats where a right 
heir existed, and seized estates as forfeit- 
ed which were protected by the statute 
of entails. The real owner had no rem- 
edy against this dispossession, but to pre- 
fer his petition of right in chancery, or, 
which was probably more effectual, to 
procure a remonstrance of the house of 
commons in his favour. Even where 
justice was finally rendered to him, he 
had no recompense for his damages ; and 
the escheators were not less hkely to re- 
peat an iniquity by which they could not 
personally suffer. 

The charter of the forests, granted by 
Forest I w Henry III. along with Magna 
Charta,* had been designed to 
crush the flagitious system of oppres- 
sion, which prevailed in those favourite 
haunts of the Norman kings. They had 
still, however, their peculiar jurisdiction, 
though, from the time at least of Edward 
III., subject in some measure to the con- 
trol of the King's Bench. f The forest- 
ers, I suppose, might find a compensation 
for their want of the common law, in 
that easy and licentious way of life which 
they affected ; but the neighbouring cul- 
tivators frequently suffered from the 
king's officers, who attempted to recover 
those adjacent lands, or, as they were 
called, purlieus, which had been disaf- 
forested by the charter, and protected 
by frequent perambulations. Many peti- 
tions of the commons relate to this griev- 
ance. 

The constable and marshal of Eng- 
Jurisdiction I'l'id possessed a jurisdiction, 
of Constable the proper limits whcreof werc 
and Marshal, sufficiently narrow, as it seems 
to have extended only to appeals of trea- 
son committed beyond sea, which were 
determined by combat, and to military 
offences within the realm. But these 
high officers frequently took upon them 
to inquire of treasons and felonies cog- 
nizable at common law, and even of civil 

♦ Matthew Paris asserts that John granted a 
separate forest-charter, and supports his position 
by inserting that of Henry III. at full length. In 
fact, the clauses relating to the forest were incor- 
porated with the great charter of John. Such an 
error as this shows the precariousness of histor- 
ical testimony, even where it seems to be best 
grounded. 

t Coke, 4th Inst., p 294. The forest domain of 
the king, says the author of the Dialogue on the 
Exchequer under Henry II., is governed by its own 
laws, not founded on the common law of the land, 
but the voluntary enactment of princes ; so that 
whatever is done by that law is reckoned not legal 
in itself, but legal accordmg to forest law, p. 29, 
non justum absolute, sed justum secundum legem 
forests dicatur. I believe my translation of justum 
IS right ; for he is not writmg satirically. 



contracts or trespasses. This is no bad 
illustration of the state in which our con- 
stitution stood under the Plantagenets. 
No colour of right or of supreme prerog- 
ative was set up to justify a procedure 
so manifestly repugnant to the great char- 
ter. For all remonstrances against these 
encroachments, the king gave promises 
in return ; and a statute was enacted, ia 
the 13th of Richard II., declaring the 
bounds of the constable and marshal's 
jurisdiction.* It could not be denied, 
therefore, that all infringements of these 
acknowledged limits were illegal, even 
if they had a hundred fold more actual 
precedents in their favour than can be 
supposed. But the abuse by no means 
ceased after the passing of this statute, 
as several subsequent petitions, that it 
might be better regarded, will evince. 
One, as it contains a special instance, I 
shall insert. It is of the fifth year of 
Henry IV. " On several supplications 
and petitions made by the commons in 
parliament to our lord the king for Ben- 
net Wilman, who is accused by certain 
of his ill wishers, and detained in prison, 
and put to answer before the constable 
and marshal, against the statutes and tlie 
common law of England, our said lord the 
king, by the advice and assent of the lords 
in parliament, granted that the said Ben- 
net should be treated according to the 
statutes and common law of England, 
notwithstanding any commission to the 
contrary, or accusation against him made 
before the constable and marshal." And 
a writ was sent to the justices of the 
king's bench, with a copy of this article 
from the roll of parliament, directing them 
to proceed as they shall see fit according 
to the laws and customs of England. f 

It must appear remarkable, that, in a 
case so manifestly within their compe- 
tence, the court of king's bench should 
not have issued a writ of habeas corpus, 
without waiting for what may be consid- 
ered as a particular act of parliament. 
But it is a natural effect of an arbitrary 
administration of government, to intimi- 
date courts of justice. J A negative ar- 

♦ 13 R. II., c. 2. t Rot. Pari., vol. ii;., p. 530. 

t The apprehension of this compliant spirit in 
the ministers of justice led to an excellent act in 
2 E. III., c. 8, that the judges shall not omit to do 
right for any command under the great or privy 
seal. And the conduct of Richard II., who sought 
absolute power by corrupting or intimidating them, 
produced another statute in the eleventh year of 
his reign (c. 10), providing that neither letters of the 
king's signet nor of the privy seal should from 
thenceforth be sent in disturbance of the law. An 
ordinance of Charles V., king of France, in 1369, 
directs the parhament of Paris to pay no regard to 
any letters under his seal suspending the course of 



426 



EUROPE DURING THE MIDDLE AGES. 



(.Chap. VIII. 



gument, founded upon the want of legal 
precedent, is certainly not conclusive, 
when it relates to a distant period, of 
which all the precedents have not beea 
noted ; yet it must strike us, that in the 
learned and zealous arguments of Sir 
Robert Cotton, Mr. Selden, and others, 
against arbitrary imprisonment, in the 
great case of the habeas corpus, though 
the statute law is full of authorities in 
their favour, we find no instance addu- 
ced, earlier than the reign of Henry VII., 
where the king's bench has released, or 
even bailed, persons committed by the 
council, or the constable, though it is un- 
questionable that such committals were 
both frequent and illegal.* 

If I have faithfully represented thus 
far the history of our constitution, its es- 
sential character will appear to be a mon- 
archy greatly limited by law, though re- 
taining much power that was ill calcu- 
lated to promote the public good, and 
swerving continually into an irregular 
course, which there was no restraint ad- 
equate to correct. But of all the notions 
that have been advanced as to the theory 
of this constitution, the least consonant 
to law and history is that which repre- 
sents the king as merely an hereditary 
executive magistrate, the first officer of 
the state. What advantages might re- 
sult from such a form of government, this 
is not the place to discuss. But it cer- 
tainly was not the ancient constitution of 
England. There was nothing in this, ab- 
solutely nothing, of a republican appear- 

legal procedure, but to consider them as surrepti- 
tiously obtained. — Villaret, t. x., p. 175. This or- 
dinance, which was sedulously observed, tended 
very much to confirm the independence and integ- 
rity of that tribunal. 

* Cotton's Posthuma, p. 221. Howell's State 
Trials, vol. iii., p. 1. Hume quotes a grant of the 
office of constable to the Earl of Rivers in 7 Edw. 
IV., and infers, unwarrantably enough, that "its 
authority was in direct contradiction to Magna 
Charta ; and it is evident that no regular liberty 
could subsist with it. It involved a full dictatorial 
power, continually subsisting in the state." — Hist, 
of England, c. 22. But by the very words of this 
patent the jurisdiction given was only over such 
causes quae in curia constabularii Anghae ab anti- 
quo, viz., tempore dicti Gulielmi conqusstoris, seu 
aliquo tempore citra, tractari, audiri, e.xaminari, 
iiut decidl consueverunt aut jure dehuerant aut de- 
bent. These are expressed, though not very per- 
spicuously, in the statute 13 Ric. II., c. 2, that de- 
clares the constable's jurisdiction. And the chief 
criminal matter reserved by law to the court of this 
officer was treason committed out of the kingdom. 
In violent and revolutionary seasons, such as the 
commencement of Edward IV. 's reign, some per- 
Bons were tried by martial law before the constable. 
But in general, the exercise of criminal justice by 
this tribunal, though one of the abuses of the 
times, cannot be said to warrant the strong lan- 
guage adopted by Hume. 



ance. All seemed to grow out of the 
monarchy, and was referred to its advan- 
tage and honour. The voice of supplica- 
tion, even in the stoutest disposition of 
the commons, was always humble ; the 
prerogative was always named in large 
and pompous expressions. Still more 
naturally may we expect to find in the 
law-books even an obsequious deference 
to power ; from judges who scarcely ven- 
tured to consider it as their duty to de- 
fend the subject's freedom, and who be- 
held the gigantic image of prerogative, in 
the full play of its hundred arms, con- 
stantly before their eyes. Through this 
monarchical tone, which certainly per- 
vades all our legal authorities, a writer 
like Hume, accustomed to philosophical 
liberality as to the principles of govern- 
ment, and to the democratical language 
which the modern aspect of the constitu- 
tion and the liberty of printing have pro- 
duced, fell hastily into the error of be- 
lieving that all limitations of royal power 
during the fourteenth and fifteenth cen- 
turies were as much unsettled in law and 
in public opinion, as they were liable to 
be violated by force. Though a contrary 
position has been sufficiently demonstra- 
ted, I conceive, by the series of parlia- 
mentary proceedings which I have al- 
ready produced, yet there is a passage in 
Sir John Fortescue's treatise De Laudibus 
Legum Angliae, so explicit and weighty, 
that no writer on the English constitution 
can be excused from inserting it. This 
eminent person, having been chief jus- 
tice of the king's bench under Henry 
VI., was governor to the young Prince 
of Wales during his retreat in France, 
and received at his hands the office of 
chancellor. It must never be forgotten, 
that in a treatise purposely composed for 
the instruction of one who hoped to reign 
over England, the limitations of govern- 
ment are enforced as strenuously by 
Fortescue, as some succeeding lawyers 
have inculcated the doctrines of arbitrary 
prerogative. 

"A king of England cannot at his 
pleasure make any alterations sirJoim 
in the laws of the land, for the Fonescue'a 
nature of his government is not to'^'t'he'Eng- 
only regal, but political. Had lisii Con- 
it been merely regal, he would sntmion. 
have a power to make what innovations 
and alterations he pleased in the laws of 
the kingdom, impose tallages and other 
hardships upon the people, whether they 
woidd or no, without their consent, which 
sort of government the civil laws point 
out when they declare, Quod principi pla- 
cuit, legis habet vigorem. But it is much 



Part III.] 



ENGLISH CONSTITUTION. 



427 



otherwise with a king whose government 
is political, because he can neither make 
any alteration or change in the laws of 
the realm without the consent of the sub- 
jects, nor burden them against their wills 
with strange impositions, so that a peo- 
ple governed by such laws as are made 
by their own consent and approbation 
enjoy their properties securely, and with- 
out the hazard of being deprived of them, 
either by the king or any other. The 
same things may be effected under an ab- 
solute prince, provided he do not degen- 
erate into the tyrant. Of such a prince 
Aristotle, in the third of his Politics, says, 
' It is better for a city to be governed by 
a good man than by good laws.' But 
because it does not always happen that 
the person presiding over a people is so 
qualified, St. Thomas, in the book which 
he writ to the King of Cyprus, De Regi- 
mine Principum, wishes, that a kingdom 
could be so instituted as that the king 
might not be at liberty to tyrannise over 
his people; which only comes to pass 
in the present case; that is, when the 
sovereign power is restrained by poUt- 
ical laws. Rejoice, therefore, my good 
prince, that such is the law of the king- 
dom to which you are to inherit, because 
it will afford, both to yourself and sub- 
jects, the greatest security and satisfac- 
tion."* 

The two great divisions of civil rule, 
the absolute, or regal, as he calls it, and 
the political^ Fortescue proceeds to de- 
duce from the several originals of con- 
quest and compact. Concerning the lat- 
ter, he declares emphatically, a truth not 
always palatable to princes, that such 
governments were instituted by the peo- 
ple and for the people's good; quoting 
St. Augustine for a similar definition of a 
political society. "As the head of a 
body natural cannot change its nerves 
and sinews, cannot deny to the several 
parts their proper energy, their due pro- 
portion and aliment of blood, neither can 
a king, who is the head of a body politic, 
change the laws thereof, nor take from 
the people what is theirs by right against 
their consent. Thus you have, sir, the 
formal institution of every political king- 
dom, from whence you may guess at the 
power which a king may exercise with 
respect to the laws and the subject. For 
he is appointed to protect his subjects in 
their lives, properties, and laws ; for this 
very end and purpose he has the delega- 
. tion of power from the people, and he has 
no just claim to any other power but 

* Fortescue, De Laudibus Legum Anglia, c. 9. 



this. Wherefore, to give a brief answeir 
to that question of yours concerning the 
different powers which kings claim over 
their subjects, I am firmly of opinion that 
It arises solely from the different natures 
of their original institution, as you may 
easily collect from what has been said. 
So the kingdom of England had its origi- 
nal from Brute and the Trojans, who at- 
tended him from Italy and Greece, and 
became a mixed kind of government, 
compounded of the regal and political."* 
It would occupy too much space to 
quote every other passage of Erroneous 
the same nature in this treatise views takea 
of Fortescue, and in that enti- ^^ ""'"^• 
tied, Of the Difference between an Abso- 
lute and Limited Monarchy, which, so far 
as these points are concerned, is nearlj"- 
a translation from the former.f But 
these, corroborated as they are by the 
statute-book and by the rolls of parlia- 
ment, are surely conclusive against the 
notions which pervade Mr. Hume's His- 
tory. I have already remarked that a 
sense of the glaring prejudice by which 
some whig writers had been actuated, in 
representing the English constitution 
from the earhest times as nearly arrived 
at its present perfection, conspired with 
certain prepossessions of his ovv^n to lead 
this eminent historian into an equally er- 
roneous system on the opposite side. 
And as he traced the stream backwards, 
and came last to the times of the Plan- 
tagenet dynasty, with opinions already 
biased and even pledged to the world in 
his volumes of earlier pubhcation, he was 
prone to seize hold of and even exagger- 
ate every circumstance that indicated 
immature civilization, and law perverted 
or infringed. t To this his ignorance of 

* Fortescue, De Laudibus Legum Angliae, c. 13. 

t The latter treatise having been written under 
Edward IV., whom Fortescue, as a restored Lan- 
castrian, would be anxious not to offend, and whom 
in fact he took some pains to conciliate both in 
this and other writmgs, it is evident that the prin- 
ciples of limited monarchy were as fully recognised 
in his reign, whatever particular acts of violence 
might occur, as they had been under the Lancas 
trian princes. 

t The following is one example of these preju 
dices : In the 9th of Richard II. a tax on wool, 
granted till the ensuing feast of St. John Baptist, 
was to be intermitted from thence to that of St. 
Peter, and then to recommence ; that it might not 
be claimed as a right.— Rot. Pari., vol. lii., p. 214. 
Mr. Hume has noticed this provision, as " showing 
an accuracy beyond what was to be expected m 
those rude times." In this epithet we see the 
foundation of his mistakes. The age of Richard 
11. might perhaps be called rude in some respects. 
But assuredly, in prudent and circumspect percep- 
tion of consequences, and an accurate use of lan- 
guage, there could be no reason why it siiould be 



428 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



English jurisprudence, which certainly 
in some measure disqualified him from 
writing our history, did not a little con- 
tribute ; misrepresentations frequently 
occurring in his work, which a moderate 
acquaintance with the law of the land 
would have prevented. 

It is an honourable circumstance to 
instances of England, that the history of no 
illegal con- other country presents so few 
Uemnation instances of illegal condem- 
^^^^' nations upon political charges. 

The judicial torture was hardly known, 
and never recognised by law.* The 
sentence in capital crimes, fixed un- 
alterably by custom, allowed nothing to 
vindictiveness and indignation. There 
hardly occurs an example of any one 
being notoriously put to death without 
form of trial, except in moments of fla- 
grant civil Avar. If the right of juries 
were sometimes evaded by irregular ju- 
risdictions, they were at least held sacred 
by the courts of law : and through all 
the vicissitudes of civil liberty, no one 
ever questioned the primary right of 
every freeman, handed down from his 
Saxon forefathers, to the trial by his 
peers. A just regard for public safety 
prescribes the necessity of severe penal- 
ties against rebellion and conspiracy ; 
but the interpretation of these offences, 
when intrusted to sovereigns and their 
counsellors, has been the most tremen- 
dous instrument of despotic power. In 
rude ages, even though a general spirit 
of pohtical liberty may prevail, the legal 
character of treason Avill commonly be 
undefined ; nor is it the disposition of 
lawyers to give greater accuracy to this 
part of criminal jurisprudence. The na- 
ture of treason appears to have been 
subject to much uncertainty in England 
before the statute of Edward III. If 

deemed inferior to our cvn. If Mr. Hume had 
ever deigned to glance at the legal decisions re- 
ported in the Year-books of those times, he would 
have been surprised, not only at the utmost accu- 
racy, but at a subtle refinement in verbal logic, 
which none of his own metaphysical treatises 
could surpass. 

* During the famous process against the knights 
templars in the reign of Edward II., the Archbish- 
op of York, having taken the examination of cer- 
tain templars in his province, felt some doubts, 
which he propounded to several monasteries and 
divines. Most of these relate to the main subject. 
But one question, fitter indeed for lawyers than 
theologians, was, whereas many would not confess 
without torture, whether he might make use of 
this means, licet hoc in regno Anglia; inmquam visum 
fuerit vel aiiditum ? Et si torquendi sunt, utrum 
per clericos vel laicos? Et dato, quod nullus om- 
nind tortor inveniri valeat in Anglia, Utrum pro tor- 
toribus mittendum sit ad partes transmannas ? — 
Walt. Hemingford, p. 256. 



that memorable law did not give all pos- 
sible precision to the offence, which we 
must certainly allow, it prevented at 
least those stretches of vindictive tyran- 
ny which disgrace the annals of other 
countries. The praise, however, must be 
understood as comparative. Some cases 
of harsh, if not illegal convictions, could 
hardly fail to occur, in times of violence 
and during changes of the reigning family. 
Perhaps the circumstances have now 
and then been aggravated by historians. 
Nothing could be more illegal than the 
conviction of the Earl of Cambridge and 
Lord Scrop, in 1415, if it be true, accord- 
ing to Carte and Hume, that they were 
not heard in their defence. But whether 
this is to be absolutely inferred from the 
record,* is perhaps open to question. 
There seems at least to have been no 
sufficient motive for such an irregularity ; 
their participation in a treasonable con- 
spiracy being manifest from their own 
confession. The proceedings against 
Sir John Mortimer in the 2d of Henry 
VI. t are called by Hume highly irregidar 
and illegal. They were, however, by act 
of attainder, which cannot well be styled 
illegal. Nor are they to be considered as 
severe. Mortimer had broken out of 
the Tower, where he was confined on a 
charge of treason. This was a capital 
felony at common law ; and the chief ir- 
regularity seems to have consisted in 
having recourse to parliament in order to 
attaint him of treason, when he had al- 
ready forfeited his life by another crime. 
I would not willingly attribute to the 
prevalence of tory dispositions what 
may be explained otherwise, the prog- 
ress which Mr. Hume's historical theory 
as to our constitution has been gradually 
making since its publication. The tide 
of opinion, which, since the Revolution, 
and indeed since the reign of James I., 
had been flowing so strongly m favour of 
the antiquity of our liberties, now seems, 
among the higher and more literary 
classes, to set pretty decidedly the other 
way. Though we may still sometimes 
hear a demagogue chattering about the 
wittenagemot, it is far more usual to find 
sensible and lilieral men who look on 
Magna Charta itself as the result of an 
uninteresting squabble between tlie king 
and his barons. Acts of force and in- 
justice, which strike the cursory inquirer, 
especially if he derives his knowledge 
from modern compilations more than 
the average tenour of events, are selected 
and displayed as fair samples of the law 



* Rot. Pari, vol. iv., p. 65. 



t Id., p. 202. 



Tart III.] 



ENGLISH CONSTITUTION. 



429 



and of its administration. We are de- 
ceived by the comparatively perfect 
state of our present liberties, and forget 
that our superior security is far less ow- 
ing to positive law than to the control 
which is exercised over government by 
public opinion through the general use of 
printing, and to the diffusion of liberal 
principles in policy through the same 
means. Thus, disgusted at a contrast 
which it was hardly candid to institute, 
we turn away from the records that at- 
test the real, though imperfect, freedom 
of our ancestors ; and are willing to be 
persuaded that the whole scheme of Eng- 
lish polity, till the commons took on 
themselves to assert their natural rights 
against James I., was at best but a mock- 
ery of popular privileges, hardly recog- 
nised in theory, and never regarded in 
effect. 

This system, when stripped of those 
slavish inferences that Brady and Carte 
attempted to build upon it, admits per- 
haps of no essential objection but its 
want of historical truth. God forbid that 
our rights to just and free government 
should be tried by a jur}- of antiquaries ! 
Yet it is a generous pride that inter- 
twines the consciousness of hereditary 
freedom with the memory of our ances- 
tors ; and no trifling argument against 
those who seem inditTerent in its cause, 
that the character of the bravest and 
most virtuous among nations has not de- 
pended upon the accidents of race or 
climate, but been gradually wrought by 
the plastic influence of civil rights, 
transmitted as a prescriptive inheritance 
through a long course of generations. 

By what means the p]nglish acquired 
Causfis tend- ^'^^ preserved this political lib- 
ing to form erty, wliich, even in the fif- 
tfon'^*'"'"'^" teenth century, was the admi- 
ration of judicious foreigners,* 
is a very rational and interesting inquiry. 
Their own serious and steady attachment 
to the laws must always be reckoned 
among the principal causes of this bles- 
sing. The civil equality of all freemen 
below the rank of peerage, and the sub- 
jection of peers themselves to the impar- 
tial arm of justice, and to a just share in 
contribution to public burdens, advan- 
tages unknown to other countries, tended 
to identify the interests and to assimilate 
the feelings of the aristocracy with those 
of the people ; classes whose dissension 
and jealousy have been in many instances 

* Philip de Comines takes several opportunities 
of testifying his esteem for the English govern- 
ment. See particularly 1. iv., c. i., and 1. v., c. 
xix. 



the surest hope of sovereigns aiming at 
arbitrary power. This freedom from the 
oppressive superiority of a privileged or- 
der was peculiar to England. In many 
kingdoms the royal prerogative was at 
least equally limited. The statutes of 
Aragon are more full of remedial provis- 
ions. The right of opposing a tyranni- 
cal government by arms was more fre- 
quently asserted in Castile. But no- 
where else did the people possess by 
law, and I think, upon the whole, in ef- 
fect, so much security for their personal 
freedom and property. Accordingly, the 
middling ranks flourished remarkably, 
not only in commercial towns, but among 
the cultivators of the soil. " There is 
scarce a small village," says Sir J. For- 
tescue, " in which you may not find a 
knight, an esquire, or some substantial 
householder (paterfamilias), commonly 
called a frankleyn,* possessed of consid- 
erable estate; besides others who are 
called freeholders, and many yeomen of 
estates sufficient to make a substantial 
jury." I would, however, point out 
more particularly two causes which had 
a very leading efficacy in the gradual de- 
velopment of our constitution ; first, the 
schemes of continental ambition in which 
our government was long: engaged ; sec- 
ondly, the manner in which feudal prin- 
ciples of insubordination and resistance 
were modified by the prerogatives of the 
early Norman kings. 

1. At the epoch when William the 
Conqueror ascended the throne, hardly 
any other power was possessed by the 
King of France than what he inherited 
from the great fiefs of the Capetian fam- 
ily. War with such a potentate was not 
exceedingly to be dreaded, and William, 
besides his immense revenue, could em- 
ploy the feudal services of his vassals, 
which were extended by him to conti- 
nental expeditions. These circumstan- 
ces were not essentially changed till 
after the loss of Normandy ; for the ac- 
quisitions of Henry II. kept him fully on 
an equality with the French crown, and 
the dilapidation which had taken place in 

* By a frankleyn in this place we are to under- 
stand what we call a country squire, like the 
frankleyn of Chaucer; for the word esquire in 
Fortescue's time was only used in its limited 
sense, for the sons of peers and knights, or such as 
had obtained the title by creation or some other 
legal means. 

The mention of Chaucer leads me to add, that 
the prologue to his Canterbury Tales is of itself a 
continual testimony to the plenteous and comfort- 
able situation of the middle ranks in England, as 
well as to that fearless independence and frequent 
originality of character among them, which liberty 
and competence have conspired to produce 



430 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



the royal demesnes was compensated 
by several arbitrary resources that filled 
the exchequer of these monarchs. But 
in the reigns of John and Henry III., the 
position of England, or rather of its sov- 
ereign, with respect to France, under- 
went a very disadvantageous change. 
The loss of Normandy severed the con- 
nexion between the Phiglish nobility and 
the continent ; they had no longer es- 
tates to defend, and took not sufficient 
interest in the concerns of Guienne to 
fight for that province at their own cost. 
Their feudal service was now commuted 
for an escuage, which fell very short of 
the expenses incurred in a protracted 
campaign. Tallages of royal towns and 
demesne lands, extortion of money from 
the Jews, every feudal abuse and oppres- 
sion were tried in vain to replenish the 
treasury, which the defence of Eleanor's 
inheritance against the increased energy 
of France was constantly exhausting. 
Even in the most arbitrary reigns, a gen- 
eral tax upon landholders, in any cases 
but those prescribed by the feudal law, 
had not been ventured ; and the standing 
bulwark of Magna Charta, as well as the 
feebleness and unpopularity of Henry HI., 
made it more dangerous to violate an 
established principle. Subsidies were 
therefore constantly required ; but for 
these it was necessary for the king to 
meet parliament, to hear their com- 
plaints, and, if he could not elude, to ac- 
quiesce in their petitions. These neces- 
sities came still more urgently upon Ed- 
ward I., whose ambitious sjoirit could not 
patiently endure the encroachments of 
Philip the Fair, a rival not less ambitious, 
but certainly less distinguished by per- 
sonal prowess than himself. What ad- 
vantage the friends of liberty reaped 
from this ardour for continental warfare, 
is strongly seen in the circumstances at- 
tending the Confirmation of the Char- 
ters. 

But after this statute had rendered all 
tallages without consent of parliament 
illegal, though it did not for some time 
prevent their being occasionally imposed, 
it was still more difficult to carry on a 
war with France or Scotland, to keep on 
foot naval armaments, or even to pre- 
serve the courtly magnificence which 
that age of chivalry affected, without 
perpetual recurrence to the house of 
commons. Edward HI. very little con- 
sulted the interests of his prerogative 
when he stretched forth his hand to 
seize the phantom of a crown in France. 
It compelled him to assemble parliament 
almost annually, and often to hold more 



than one session within the year. — Here 
the representatives of England learned 
the habit of remonstrance and condition- 
al supply ; and though, in the meridian 
of Edward's age and vigour, they often 
failed of immediate redress, yet they 
gradually swelled the statute-roll with 
provisions to secure their country's free- 
dom ; and acquiring self-confidence by 
mutual intercourse, and sense of the pub- 
lic opinion, they became able, before the 
end of Edward's reign, and still more in 
that of his grandson, to control, prevent, 
and punish the abuses of administration. 
Of all these proud and sovereign privi- 
leges, the right of refusing supply was 
the keystone. But for the long wars in 
which our kings were involved, at first 
by their possession of Guienne, and after- 
ward by their pretensions upon the crown 
of France, it would have been easy 
to suppress remonstrances by avoiding 
to assemble parliament. For it must be 
confessed, that an authority was given to 
the king's proclamations, and to ordinan- 
ces of the council, which diflTered but 
little from legislative power, and would 
very soon have been interpreted by com- 
plaisant courts of justice to give them 
the full extent of statutes. 

It is common indeed to assert, that the 
liberties of England were bought with 
the blood of our forefathers. This is a 
very magnanimous boast ; and in some 
degree is consonant enough to the truth. 
But it is far more generally accurate to 
say, that they were purchased by money. 
A great proportion of our best laws, in- 
cluding Magna Charta itself, as it now 
stands confirmed by Henry III., were, in 
the most literal sense, obtained by a pe- 
cuniary bargain with the crown. In 
many parliaments of Edward III. and 
Richard II. this sale of redress is chaf- 
fered for as distinctly, and with as little 
apparent sense of disgrace, as the most 
legitimate business between two mer- 
chants would be transacted. So little 
was there of voluntary benevolence in 
what the loyal courtesy of our constitu- 
tion styles concessions from the throne ; 
and so little title have these sovereigns, 
though we cannot refuse our admiration 
to the generous virtues of Edward HI. 
and Henry V., to claim the gratitude of 
posterity as the benefactors of their 
people ! 

2. The relation established between a 
lord and his vassal, by the feudal tenure, 
far from containing principles of any 
servile and implicit obedience, permitted 
the compact to be dissolved in case of its 
violation by either party. This extend- 



Part lit.] 



ENGLISH CONSTITUTION, 



431 



ed as much to the sovereign as to inferi- 
or lords ; the authority of the former in 
France, where the system most flour- 
ished, being for seyeral ages rather feu- 
dal than political. If a vassal was ag- 
grieved, and if justice was denied him, he 
sent a defiance, that is, a renunciation of 
fealty to the king, and was entitled to 
enforce redress at the point of his 
sword. It then became a contest of 
strength as between two independent po- 
tentates, and was terminated by treaty, 
advantageous or otherwise, according to 
the fortune of war. This privilege, 
suited enough to the situation of France, 
the great peers of which did not origi- 
nally intend to admit more than a nomi- 
nal supremacy in the house of Capet, 
was evidently less compatible with the 
regular monarchy of England. The 
stern natures of William the Conqueror 
and his successors kept in control the 
mutinous spirit of their nobles, and reap- 
ed the profit of feudal tenures, without 
submitting to their reciprocal obligations. 
They counteracted, if I may so say, the 
centrifugal force of that system by the 
application of a stronger power ; by 
preserving order, administering justice, 
checking the growth of baronial influ- 
ence and riches, with habitual activity, 
vigilance, and severity. Still, however, 
there remained the original principle, 
i,hat allegiance depended conditionally 
upon good treatment, and that an appeal 
might be lawfully made to arms against 
an oppressive government. Nor was 
this, we may be sure, left for extreme 
necessity, or thought to require a long 
enduring forbearance. In modern times, 
a king compelled by his subjects' swords 
10 abandon any pretension would be sup- 
posed to have ceased to reign ; and the 
express recognition of such a right as 
that of insurrection has been justly 
deemed inconsistent with the majesty of 
law. But ruder ages had ruder senti- 
ments. Force was necessary to repel 
force ; and men accustomed to see the 
king's authority defied by private riot 
were not much shocked when it was re- 
sisted in defence of public freedom. 

The Great Charter of John Avas secured 
by the election of twenty-five barons, as 
conservators of the compact. If the king, 
or the justiciary in his absence, should 
transgress any article, any four might de- 
mand reparation, and on denial carry 
their complaint to the rest of their body. 
" And those barons, with all the com- 
mons of the land, shall distrain and an- 
noy us by every means in their power ; 
that is, by seizing our castles, lands, and 



possessions, and every other mode, till 
the wrong shall be repaired to their sat- 
isfaction ; saving our person, and our 
queen and children. And when it shall 
be repaired they shall obey us as be- 
fore."* It is amusing to see the com- 
mon law of distress introduced upon this 
gigantic scale ; and the capture of the 
king's castles treated as analogous to im- 
pounding a neighbour's horse for break- 
ing fences. 

A very curious illustration of this feu- 
dal principle is found in the conduct of 
William, earl of Pembroke, one of the 
greatest names in our ancient history, 
towards Henry III. The king had defied 
him, which was tantamount to a declara- 
tion of war ; alleging that he had made 
an inroad upon the royal domains. Pem- 
broke maintained that he was not the ag- 
gressor, that the king had denied him 
justice, and been the first to invade his 
territory ; on which account he had 
thought himself absolved from his hom- 
age, and at liberty to use force against 
the malignity of the royal advisers. 
" Nor would it be for the king's honour," 
the earl adds, " that I should submit to 
his will against reason, whereby I should 
rather do wrong to him and to that jus- 
tice which he is bound to administer to- 
wards his people : and I should give an 
ill example to all men in deserting justice 
and right in compliance with his mistaken 
will. For this would show that I loved 
my worldly wealth better than justice." 
These words, with whatever dignity ex- 
pressed, it may be objected, prove only 
the disposition of an angry and revolted 
earl. But even Henry fully admitted the 
right of taking arms against himself, if 
he had meditated his vassal's destruction, 
and disputed only the application of this 
maxim to the Earl of Pembroke. f 

These feudal notions, which placed the 
moral obligation of allegiance very low, 
acting under a Aveighty pressure from the 
real strength of the croAvn, Avere favour- 
able to constitutional liberty. The great 
vassals of France and Germany aimed at 
living independently on their fiefs, Avith 
no further concern for the rest than as 
useful allies having a common interest 
against the croAvn. But in England, as 
there Avas no prospect of throAving off 
subjection, the barons endeavoured only 
to lighten its burden, fixing limits to pre- 
rogative by laAV, and securing their ob- 
servation by parliamentary remonstran- 
ces or by diint of arms. Hence, as all 



* Brady's Hist., vol. i., Appendix, p. 148. 
f Matt. Paris, p. 330. Lyttleton's Hist, of Hen- 
ry IL, vol. iv., p. 41, 



432 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII 



rebellions in England were directed only 
to coerce the government, or, at the ut- 
most, to change the succession of the 
crown, without the smallest tendency to 
separation, they did not impair the na- 
tional strength, nor destroy the charac- 
ter of the constitution. In all these con- 
tentions, it is remarkable that the people 
and clergy sided with the nobles against 
the throne. No individuals are so pop- 
ular with the monkish annalists, who 
speak the language of the populace, as 
Simon, earl of Leicester, Thomas, earl 
of Lancaster, and Thomas, duke of 
Glocester, all turbulent opposers of the 
royal authority, and probably little de- 
serving of their panegyrics. Very few 
English historians of the middle ages are 
advocates of prerogative. This may be 
ascribed both to the equality of our laws, 
and to the interest which the aristocracy 
found in courting popular favour when 
committed against so formidable an ad- 
versary as the king. And even now, 
when the stream that once was hurried 
along gullies, and dashed down precipices, 
hardly betrays, upon its broad and tran- 
quil bosom, the motion that actuates it, 
it must still be accounted a singular hap- 
piness of our constitution, that all ranks 
graduating harmoniously into one anoth- 
er, the interests of peers and common- 
ers are radically interwoven ; each in a 
certain sense distinguishable, but not bal- 
anced like opposite weights, not separa- 
ted like discordant fluids, not to be se- 
cured by insolence or jealousy, but by 
mutual adherence and reciprocal influ- 
ences. 

From the time of Edward L, the feudal 
Influence System and all the feelings con- 
which the nected with it dechned very rap- 
manners idly- But what the nobility lost 
gave the in the number of their military 
nobility, tenants was in some degree com- 
pensated by the state of manners. The 
higher class of them, who took the chief 
share in public affairs, were exceedingly 
opulent ; and their mode of life gave 
wealth an incredibly greater efficacy than 
it possesses at present. Gentlemen of 
large estates and good families, who had 
attached themselves to these great peers, 
who bore offices, which we should call 
menial, in their households, and sent 
their children thither for education, were 
of course ready to follow their banner in 
rising, without much inquiry into the 
cause. Still less would the vast body of 
tenants, and their retainers, who were 
fed at the castle in time of peace, refuse 
to carry their pikes and staves into the 
field of battle. Many devices were used 



to preserve this aristocratic influence, 
which riches and ancestry of themselves 
rendered so formidable. Such was the 
maintenance of suitg, or confederacies 
for the purpose of supporting each otlier's 
claims in litigation, which was the sub- 
ject of frequent complaints in parliament, 
and gave rise to several prohibitory stat- 
utes. By help of such confederacies 
parlies were enabled to make violent en- 
tries upon the lands they claimed, which 
the law itself could hardly be said to dis- 
courage.* Even proceedings in courts 
of justice were often liable to intimida- 
tion and influence.! A practice much 
alhed to confederacies of maintenance, 
though ostensibly more harmless, was 
that of giving liveries to all retainers of 
a noble family ; but it had an obvious 
tendency to preserve that spirit of fac- 
tious attachments and animosities, which 
it is the general pohcy of a wise govern- 
ment to dissipate. From the first year 
of Richard IL we find continual mention 
of this custom, with many legal provis- 
ions against it, but it was never abol- 
ished till the reign of Henry VILJ 



* If a man was disseized of his land, he might 
enter upon the disseisor and reinstate himself with- 
out course of law. In what case this right of en- 
try was taken away, or tolled, as it was expressed, 
by the death or alienation of the disseisor, is a sub- 
ject extensive enough to occupy two chapters of 
Lyttleton. What pertains to our inquiry is, that by 
an entry, in the old law books, we must understand 
an actual repossession of the disseisee, not a suit 
in ejectment, as it is now interpreted, but which is 
a comparatively modern proceeding. The first 
remedy, says Britton, of the disseisee is to collect a 
body of his friends (recoiller amys et force), and 
without delay to cast out the disseisors, or at least 
to maintain himself in possession along with them, 
c. 41. This entry ought indeed, by 5 Rich. II., 
stat. i., c. 8, to be made peaceably ; and the jus- 
tices might assemble the posse comitatus, to im- 
prison persons entering on lands by violence (15 
Ric. II., c. 2), but these laws imply the facts that 
made them necessary. 

+ No lord or other person, by 20 Ric. II., c. 3, 
was permitted to sit on the bench with the justices 
of assize. Trials were sometimes overawed by 
armed parties, who endeavoured to prevent their 
adversaries from appearing. — Paston Letters, vol. 
hi., p, 119. 

X From a passage in the Paston Letters (vol. li. 
p. 23), it appears that, far from these acts being re- 
garded, it was considered as a mark of respect to 
the king, when he came into a county, for the no- 
blemen and gentry tc meet him with as many at- 
tendants in livery as they could muster. Sir John 
Paston was to provide twenty men in their livery- 
gowns, and the Duke of Norfolk two hundred, 
'i'his illustrates the well-known story of Henry 
Vll. and the Earl of Oxford, and shows the mean 
and oppressive conduct of the king in that affair, 
which Hume has pretended to justify. 

In the first of Edward IV. it is said in the roll of 
parliament (vol. v., p. 407), that " by yeving of liv- 
eries an<l signes, contrary to the statutes and ordi- 
nances made aforetyme, maintenaunce of quarrels, 



Part III.] 



ENGLISH CONSTITUTION. 



433 



These associations under powerful 
Prevalent chiefs were only incidentally 
habits of beneficial as they tended to with- 
rapine. stand the abuses of prerogative. 
In their more usual course, they were 
designed to thwart the legitimate exer- 
cise of the king's government in the ad- 
ministration of the laws. All Europe 
was a scene of intestine anarchy during 
the middle ages ; and though England 
was far less exposed to the scourge of 
private war than most nations on the 
continent, we should find, could we re- 
cover the local annals of every country, 
such an accumulation of petty rapine and 
tumult, as would almost alienate us from 
the liberty which served to engender it. 
This was the common tenour of manners, 
sometimes so much aggravated as to find 
a place in general history,* more often 
attested by records, during the three cen- 
turies that the house of Plantagenet sat 
on the throne. Disseisin, or forcible dis- 
possession of freeholds, makes one of 
the most considerable articles in our 
law-books. f Highway robbery was from 

extortions, robberies, murders been multiplied and 
continued within this reame, to the grete disturb- 
aunce and inquietation of the same." 

* Thus, to select one passage out of many ; 
Eodem anno (1332) quidam maligni, fulti quorun- 
dam magnatum praesidio, regis adolescentiam sper- 
nentes, et regnum perturbare intendentes, in tan- 
tam turbam creverunt, nemora et saltus occupave- 
runt, ita quod toti regno terrori essent. — Walsing- 
ham, p. 132. 

t I am aware that in many, probably a great 
majority of reported cases, this word was techni- 
cally used, where some unwarranted conveyance, 
such as a feoffment by the tenant for life, was held 
to have wrought a disseisin ; or where the plain- 
tiff vkfas aJlov/ed, for the purpose of a more con- 
venient remedy, to feign hnnself disseized, which 
was called disseisin by election. But several 
proofs might be brought from the parliamentary 
petitions, and I doubt not, if nearly looked at, from 
the year-books, that in other cases there was an 
actual and violent expulsion. And the definition 
of disseisin in all the old writers, such as Brilton 
and Littleton, is obviously framed upon its primary 
meaning of violent dispossession, which the word 
had probably acquired long before the more peacea- 
ble disseisins, if I may use the expression, became 
the subject of the remedy by assize. 

I would speak with deference of Lord Mansfield's 
elaborate judgment in Taylor dem. Atkins v. 
Horde, 1 Burrow, 107, &,c. ; but some positions in 
it appear to me rather too strongly stated ; and 
particularly, that the acceptance of the disseisor as 
tenant by the lord was necessary to render the dis- 
seisin complete ; a condition which I iiave not 
found hinted in any law-book. — See Butler's note 
on Co. Litt., p. 330; where that eminent lawyer 
expresses similar doubts as to Lord Mansfield's 
reasoning. It may however be remarked, that 
constructive or elective disseisins, being of a tech- 
nical nature, were more likely to produce cases in 
the year-books, than those accompanied with ac- 
tual violence, which would commonly turn only 
on matters of fact, and be determined by a jury. 
Ee 



the earliest times a sort of national crime. 
Capital punishments, though very fre- 
quent, made little impression on a bold 
and licentious crew, who had at least the 
sympathy of those who had nothing to 
lose on their side, and flattering pros- 
pects of impunity. We know how long 
the outlaws of Sherwood lived in tradi- 
tion ; men who, like some of their bet- 
ters, have been permitted to redeem by 
a few acts of generosity the just igno- 
miny of extensive crimes. These, in- 
deed, were the heroes of vulgar applause ; 
but when such a judge as Sir .John For- 
tescue could exult that more Englishmen 
were hanged for robbery in one year 
than French in seven, and that " if an 
Englishman be poor, and see another 
having riches, which may be taken from 
him by might, he will not spare to do 
so,"* it may be perceived how thorough- 
ly these sentiments had pervaded the 
public mind. 

Such robbers, I have said, had flatter- 
ing prospects of impunity. Besides the 
general want of communication, which 
made one who had fled from his own 
neighbourhood tolerably secure, they had 
the advantage of extensive forests to fa- 
cilitate their depredations, and prevent 
detection. When outlawed, or brought 
to trial, the worst off"enders could fre- 
quently purchase charters of pardon, 
which defeated justice in the moment 
of her blow.f Nor were the nobility 



A remarkable instance of violent disseisin 
amounting in effect to a private war, may be found 
in the Paston Letters, occupying most of the fourth 
volume. One of the Paston family, claiming a 
right to Caister Castle, kept possession against the 
Duke of Norfolk, who brought a large force, and 
laid a regular siege to the place, till it surrendered 
for want of provisions. Two of the besiegers were 
killed. It does not appear that any legal measures 
were taken to prevent or punish this outrage. 

* Difference between an Absolute and Limited 
Monarchy, p. 99. 

f The manner in which these were obtained, in 
spite of law, may be noticed among the violent 
courses of prerogative. By statute 2 E. III., c. 2, 
confirmed by 10 £. III., c. 2, the king's power of 
granting pardons was taken away, except in cases of 
homicide per infortunium. Another act, 14 E. III., 
c. 15, reciting that the former laws in this respect 
have not been kept, declares that all pardons con- 
trary to them shall be holden as null. This, how- 
ever, was disregarded like the rest ; and the com- 
mons began tacitly to recede from them, and en- 
deavoured to compromise the question with the 
crown. By 27 E. III., stat. 1, c. 2, without advert- 
ing to the existing provisions, which may therefore 
seem to be repealed by implication, it is enacted that 
in every charter of pardon, granted at any one's 
suggestion, the suggestor's name and the grounds 
of his suggestion shall be expressed, that if the 
same be found untrue, it may be disallowed. And 
in 13 R. II., stat. 2, c. 1, we are surprised to find 
the commons requesting that pardons might not 



434 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIIL 



ashamed to patronise men guilty of eve- 
ry crime. Several proofs of this occur 
in the rolls. Thus, for example, in the 
22d of Edward III., the commons pray, 
that " whereas it is notorious how rob- 
bers and malefactors infest the country, 
the king would charge the great men of 
the land that none such be maintained 
by them, privily or openly, but that they 
lend assistance to arrest and take such 
ill doers."* 

It is perhaps the most meritorious part 
of Edward I.'s government, that he bent 
all his power to restrain these breaches 
of tranquillity. One of his salutary pro- 
visions is still in constant use, the statute 
of coroners. Another more extensive, 
and, though partly obsolete, the founda- 
tion of modern laws, is the statute of 
Winton, which, reciting that, "from day 
to day robberies, murders, burnings, and 
theft be more often used than they have 
been heretofore, and felons cannot be at- 

be granted, as if the subject were wholly unknown 
to the law ; the king protesting in reply that he 
will save his liberty and regality, as his progenitors 
had done before, but conceding some regulations, 
far less remedial than what were provided already 
by the 27th of Edward II. Pardons make a pretty 
large head in Brooke's Abridgment, and were un- 
doubtedly granted without scruple by every one 
of our kings. A pardon obtained in a case of pecu- 
liar atrocity is the subject of a specific remonstrance 
in 23 H. VI., Rot. Pari., vol. v., p. 111. 

* Rot. Pari., vol. li., p. 201. A strange policy, 
for which no rational cause can be alleged, kept 
Wales, and even Cheshire, distinct from the rest 
of the kingdom. Nothing could be more injurious 
to the adjacent countries. Upon the credit of their 
immunity from the jurisdiction of the king's courts, 
the people of Cheshire broke with armed bands into 
the neighbouring counties, and perpetrated all the 
crimes m their power. — Rot. Pari., vol. iii., p. 81, 
201,440. Stat. 1 H. IV., c. 18. As to the W^elsh 
frontier, it was constantly almost in a state of war, 
which a very little good sense and benevolence in 
any of our shepherds would have easily prevented, 
by admitting the conquered people to partake in 
equal privileges with their fellow-subjects. Instead 
of this, they satisfied themselves with aggravatmg 
the mischief by granting legal reprisals upon 
Welshmen.-— Stat. 2 H. IV., c. 16. Welshmen 
wer« absolutely excluded from bearing ofllice in 
Wales. The English living in the English towns 
of Wales earnestly petition, 23 H. VI., Rot. Pari., 
vol. v., p. 104, 154, that this exclusion maybe kept 
in force. Complaints of the disorderly state of the 
Welsh frontier are repeated as late as 12 Edw. IV., 
vol. vi., p. 8. 

It is curious that, so early as 15 Edw. II., a writ 
was addressed to the Earl of Arundel, justiciary of 
Wales, directing him to cause twenty-four discreet 
persons to be chosen from the north, and as many 
from the south of that principality, to serve in par- 
liament.— Rot. Pari., vol. i., p. 456. And we find 
a similar writ in the 20th of the same king. — 
Prynne's Reg., 4th part, p. 00. Willis says, that 
he has seen a return to one of these precepts, much 
obliterated, but from which it appears that Con- 
way, Beaumaris, and Carnarvon returned mem- 
bers. — Notitia Parliamentaria, vol. i.. preface, p. 15. 



tainted by the oath of jurors, which had 
rather suffer robberies on strangers to 
pass without punishment, than indite the 
offenders, of whom great part be people 
of the same country, or at least, if the 
offenders be of another country, the re- 
ceivers be of places near," enacts that 
hue and cry shall be made upon the com- 
mission of a robbery, and that the hun- 
dred shall remain answerable for the 
damage unless the felons be brought to 
justice. It may be inferred from this 
provision, that the ancient law of frank- 
pledge, though retained longer in form, 
had lost its efficiency. By the same act, 
no stranger or suspicious person was to 
lodge even in the suburbs of towns ; the 
gates were to be kept locked from sunset 
to sunrising; every host to be answera- 
ble for his guest ; the highways to be 
cleared of trees and underwood for two 
hundred feet on each side; and every 
man to keep arms, according to his sub- 
stance, in readiness to follow the sheriff 
on hue and cry raised after felons.* 
The last provision indicates that the rob- 
bers plundered the country in formidable 
bands. One of these, in a subsequent 
part of Edward's reign, burnt the town 
of Boston during a fair, and obtained a 
vast booty, though their leader had the 
ill fortune not to escape the gallows. 

The preservation of order throughout 
the country was originally intrusted, not 
only to the sheriff, coroner, and consta- 
bles, but to certain magistrates, called 
conservators of the peace. These, in 
conformity to the democratic character 
of our Saxon government, were elected 
by the freeholders in their county-court. f 
But Edward I. issued commissions to 
carry into effect the statute of Winton; 
and from the beginning of Edward III.'s 
reign, the appointment of conservators 
was vested in the crown, their authority 
gradually enlarged by a series of stat- 
utes, and their title changed to that of 
justices. They were empowered to im- 
prison and punish all rioters and other of- 
fenders, and such as they should find by 
endictment, or suspicion, to be reputed 
thieves or vagabonds ; and to take sure- 
ties for good behaviour from persons of 
evil fame. I Such a jurisdiction was hard- 

* The statute of Winton was confirmed, and 
proclaimed afresh by the sheriffs, 7 R. II., c. 6, af- 
ter an era of great disorder. 

t Blackstone, vol. i., c. 9. Carte, vol. ii., p. 203. 

t 1 E. III., Stat, ii., c. 10 ; 4 E. III., c. 2 ; 34 E. 
III., c. 1 ; 7 R. II., c. 5. The institution e-^ccited a 
good deal of ill-will, even before these strong acts 
were passed. Many petitions of the commons in 
the 28th E. III., and other years, complain of it.— 
Rot. Pari., vol. ii. 



PlRT lll.l 



ENGLISH CONSTITUTION. 



435 



ly more arbitrary than, in a free and civ- 
ilized age, it has been thought fit to vest 
in magistrates ; but it was ill endured by 
a people who placed their notions of 
liberty in personal exemption from re- 
straint, rather than any political theory. 
An act having been passed (2 R. II., st. 2, 
c. 6) in consequence of unusual riots and 
outrages, enabling magistrates to commit 
the ringleaders of tumultuary assemblies 
without waiting for legal process till the 
next arrival of justices of jail delivery, 
the commons petitioned the next year 
against this " horrible grievous ordi- 
nance," by which " every freeman in the 
kingdom would be in bondage to these 
justices," contraiy to the great charter 
and to many statutes, which forbid any 
man to be taken without due course of 
law.* So sensitive was their jealousy 
of arbitrary imprisonment, that they pre- 
ferred enduring riot and robbery to chas- 
tising them by any means that might af- 
ford a precedent to oppression, or weak- 
en men's reverence for Magna Charta. 

There are two subjects remaining, to 
which this retrospect of the state of man- 
ners naturally leads us, and which I 
would not pass unnoticed, though not 
perhaps absolutely essential to a consti- 
tutional history ; because they tend in a 
very material degree to illustrate the 
progress of society, with which civil lib- 
erty and regular government are closely 
connected. These are, first, the servi- 
tude or villanage of the peasantry, and 
their gradual emancipation from that 
condition ; and, secondly, the continual 
increase of commercial intercourse with 
foreign countries. But as the latter topic 
will fall more conveniently into the next 
part of this work, I shall postpone its 
consideration for the present. 

In a former passage I have remarked 
Villanage of of the Anglo-Saxon ceorls, that 
the peas- neither their situation nor that 
Its nature of their descendants for the ear- 
and gradual lier reigns after the conquest 
extinction, appears to have been mere ser- 
vitude. But from the time of Henry II., 
as we learn from Glanvil, the villein so 
called was absolutely dependant upon his 
lord's will, compelled to unlimited servi- 
ces, and destitute of property, not only 
in the land he held for his maintenance, 
but in his own acquisitions.! If a villein 

* Rot. Pari., vol. iii., p. 65. It may be observed 
that this act, 2 E. II., c. 16, was not founded on a 
petition, but on the king's ansvyer; so that the 
commons were not real parties to it, and according- 
ly call it an ordinance in their present petition. 
This naturally increased their animosity in treating 
it as an infringement of the subject's right. 

t Glanvil, 1. v., c. 5. 
E e3 



purchased or inherited land, the lord 
might seize it ; if he accumulated stock, 
its possession was equally precarious. 
Against his lord he had no right of ac- 
tion ; because his indemnity in damages, 
if he could have recovered any, might 
have been immediately taken away. If 
he fled from his lord's service or from 
the land which he held, a writ issued de 
nativitate probanda, and the master re- 
covered his fugitive by law. His chil- 
dren were born to the same state of ser- 
vitude ; and, contrary to the rule of the 
civil law, where one parent was free and 
the other in villanage, the offspring fol- 
lowed their father's condition.* 

This was certainly a severe lot; yet 
there are circumstances which materially 
distinguish it from slavery. The condi- 
tion of villanage, at least in later times, 
was perfectly relative ; it formed no dis- 
tinct order in the political economy. No 
man was a villein in the eye of law, unless 
his master claimed him : to all others he 
was a freeman, and might acquire, dis- 
pose of, or sue for property without im- 
pediment. Hence, Sir E. Coke argues, 
that villeins are included in the 29th arti- 
cle of Magna Charta: — "No freeman 
shall be disseized nor imprisoned."! For 



* According to Bracton, the bastard of a nief, or 
female villein, was born in servitude ; and where 
the parents lived on a villein tenement, the children 
of a nief, even though married to a freeman, were 
villeins, 1. iv., c. 21, and see Beame's translation 
of Glanvil, p. 109. i3ut Littleton lays down an op- 
posite doctrine, that a bastard was necessarily free ; 
because, being the child of no father in the con- 
templation of law, he could not be presumed to in- 
herit servitude from any one ; and makes no dis- 
tinction as to the parent's residence. — Sect. 188. I 
merely take notice of this change in the law be- 
tween the reigns of Henry 111. and Edward IV. as 
an instance of the bias which the judges showed in 
favour of personal freedom. Another, if we can 
rely upon it, is more important. In the reign of 
Henry 11., a freeman marrying a nief and settling 
on a villein tenement, lost the privileges of free- 
dom during the time of his occupation ; legem ter- 
ras quasi nativus amittit. — Glanvil, 1. v., c. 6. This 
was consonant to the customs of some other coun- 
tries, some of which went farther, and treated 
such a person for ever as a villein. But, on the 
contrary, we find in Brilton a century later, that 
the nief herself by such a marriage became free du 
ring the coverture, c. 31. 

t I must confess that I have some doubts howr 
far this was law at the epoch of Magna Charta. 
Glanvil and Bracton both speak of the status ville- 
nagii as opposed to that of liberty, and seem to con- 
sider it as a civil condition, not a merely personal 
relation. The civil law antl the French treatise of 
Beaumanoir hold the same language. And Sir 
Robert Cotton maintains without hesitation, that 
villeins are not withm the 2inh section of Magna 
Charta, " being excluded by the word liber."— Cot- 
ton's Posthuma, p. 223. Britton, however, a little 
after 15racton, says that in an action the villein is 
answerable to all men, and all men to him, p. 79. 
And later judges, in favorem libertatis, gave this 



436 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Vllf, 



murder, rape, or mutilation of his villein, 
the lord was endictable at the king's suit ; 
though not for assault or imprisonment, 
which were within the sphere of his 
signorial authority.* 

This class was distinguished into vil- 
leins regardant, who had been attached 
from time immemorial to a certain ma- 
nor, and villeins in gross, where such ter- 
ritorial prescription had never existed or 
had been broken. In the condition of 
these, whatever has been said by some 
writers, I can find no manner of differ- 
ence ; the distinction was merely tech- 
nical, and affected only the mode of 
pleading-! The term, in gross, is appro- 
priated in our legal language to property 
held absolutely, and without reference to 
any other. Thus it is applied to rights 
of advowson or of common, when pos- 
sessed simply, and not as incident to 
any particular lands. And there can be 
no doubt that it was used in the same 
sense for the possession of a villein. 
But there was a class of persons, some- 
times inaccurately confounded with vil- 
leins, whom it is more important to sep- 
arate. Villanage had a double sense, as 
it related to persons or to lands. As all 
men were free or villeins, so all lands 

construction to the villein's situation, which must 
therefore be considered as the clear law of Eng- 
land in the fourteenth and fifteenth centuries. 

* Littleton, sect. 189, 190, speaks only of an ap- 
peal in the two former cases ; but an endictment is 
a fortiori ; and he says, sect. 194, that an endict- 
ment, though not an appeal, lies against the lord 
for maiming his villein. 

t Gurdon on Courts Baron, p. 592, supposes the 
villein in gross to have been the Lazzus or Servus 
of early times, a domestic serf, and of an inferior 
species to the cultivator or villein regardant. Un- 
luckily, Bracton and Littleton do not confirm this 
notion, which would be convenient enough ; for in 
Domesday Book there is a marked distinction be- 
tween the Servi and Villani. Blackstone express- 
es himself inaccurately when he says the villein 
in gross was annexed to the person of the lord, and 
transferable by deed from one owner to another. 
By this means indeed, a villein regardant would be- 
come a villein in gross, but all villeins were alike 
liable to be sold by their owners. — Littleton, sect. 
181. Blomefield's Norfolk, vol. iii., p. 860. Mr. 
Hargrave supposes that villeins in gross were nev- 
er numerous (Case of Somerset, Howell's Slate 
Trials, vol. xx., p. 42) ; drawing this inference from 
the few cases relative to them that occur in the 
Year-books. And certainly the form of a writ de 
nativitate probanda, and the peculiar evidence it 
required, which may be found in Fitzherbert's Na- 
tura Brevium, or in Mr. H.'s argument, are only 
applicable to the other species. It is a doubtful 
point, whether a freeman could, in contemplation of 
iaw, become a villein in gross ; though his con- 
fession in a court of record, upon a suit already 
commenced (for this was requisite), would estop 
him from claiming his liberty ; and hence Bracton 
speaks of this proceeding as a mode by which a 
freeman might fall into servitude 



were held by a free or villein tenure. 
This great division of tenures was prob- 
ably derived from the bockland and folk- 
land of Saxon times. As a villein might 
be enfeoffed of freeholds, though they lay 
at the mercy of his lord, so a freeman 
might hold tenements in villanage. la 
this case, his personal liberty subsisted 
along with the burdens of territorial ser- 
vitude. He was bound to arbitrary ser- 
vice at the will of the lord, and he might 
by the same will be at any moment dis- 
possessed ; for such was the condition of 
his tenure. But his chattels were se- 
cure from seizure, his person from inju- 
ry, and he might leave the land whenev- 
er he pleased.* 

From so disadvantageous a condition 
as this of villanage, it may cause some 
surprise that the peasantry of England 
should have ever emerged. The law 
incapacitating a villein from acquiring 
property, placed, one would imagine, 
an insurmountable barrier in the way of 
his enfranchisement. It followed from 
thence, and is positively said by Glan- 
vil, that a villein could not buy his free- 
dom, because the price he tendered 
would already belong to his lord.f And 
even in the case of free tenants in villan- 
age, it is not easy to comprehend how 
their uncertain and unbounded services 
could ever pass into slight pecuniary com- 
mutations ; much less how they could 
come to maintain themselves in their 
lands, and mock the lord with a nominal 
tenure according to the custom of the 
manor. 

This, like many others relating to the 
progress of society, is a very obscure in- 
quiry. We can trace the pedigree of 
princes, fill up the catalogue of towns 
besieged and provinces desolated, de- 
scribe even the whole pageantry of cor- 
onations and festivals, but we cannot re- 
cover the genuine history of mankind. 
It has passed away with slight and par- 
tial notice by contemporary writers ; and 
our most patient industry can hardly at 
present put together enough of the frag- 
ments to suggest a tolerably clear repre- 
sentation of ancient manners and social 
life. I cannot profess to undertake what 
would require a command of books as 
well as leisure beyond my reach ; but 
the following observations may tend a 
little to illustrate our immediate subject, 
the gradual extinction of villanage. 

If we take what may be considered as 
the simplest case, that of a manor divided 
into demesne lands of the lord's occupa- 

* Bracton, 1. ii., c. 8 ; 1. iv.,c.28. Littleton, sect, 
172. t Glanvil, 1. iv., c. 5. 



Part III.] 



ENGLISH CONSTITUTION. 



437 



tion, and those in the tenure of his vil- 
leins, performing all the services of agri- 
culture for him, it is obvious that his in- 
terest was to maintuin just so many of 
these as his estate required for its culti- 
vation. Land, the cheapest of articles, 
was the price of their labour ; and though 
the law did not compel him to pay this 
or any other price, yet necessity, repair- 
ing in some degree the law's injustice, 
made those pretty secure of food and 
dwellings who were to give the strength 
of their arms for his advantage. But in 
course of time, as alienations of small 
parcels of manors to free tenants came 
to prevail, the proprietors of land were 
placed in a new situation relatively to its 
cultivators. The tenements in villanage, 
whether by law or usage, were never 
separated from the lordship, while its do- 
main was reduced to a smaller extent, 
through sub-infeudations, sales, or de- 
mises for valuable rent. The purchasers 
imder these alienations had occasion for 
labourers ; and these would be free ser- 
vants in respect of such employers, 
though in villanage to their original lord. 
As he demanded less of their labour 
through the diminution of his domain, 
they had more to spare for other mas- 
ters ; and retaining the character of vil- 
leins and the lands they held by that ten- 
ure, became hired labourers in husbandry 
for the greater part of the year. It is 
true that all their earnings were at the 
lord's disposal, and that he might have 
made a profit of their labour when he 
ceased to require it for his own land. 
But this, which the rapacity of more com- 
mercial times would have instantly sug- 
gested, might escape a feudal superior, 
who, wealthy beyond his wants, and 
guarded by the haughtiness of ancestry 
against the love of such pitiful gains, was 
better pleased to win the affection of his 
dependants than to improve his fortune 
at their expense. 

The services of villanage were grad- 
ually rendered less onerous and uncer- 
tain. Those of husbandry indeed are 
naturally uniform, and might be antici- 
pated with no small exactness. Lords of 
generous tempers granted indulgences, 
which were either intended to be, or 
readily became perpetual. And thus, in 
the time of Edward L, we find the ten- 
ants in some manors bound only to stated 
services, as recorded in the lord's book.* 

* Dugdale's Warwickshire apud Eden's State 
of the Poor, vol. i., p. 13. A passage in another 
local history rather seems to indicate, that some 
kind of delinquency was usually alleged, and some 
ceremony employed before the lord entered on the 



Some of these perhaps might be villeins 
by blood ; but free tenants in villanage 
were still more likely to obtain this pre- 
cision in their services ; and from claim- 
ing a customary right to be entered in the 
court-roll upon the same terms as their 
predecessors, prevailed at length to get 
copies of it for their security.* Proofs 
of this remarkable transformation from 
tenants in villanage to copyholders are 
found in the reign of Henry IIL I do 
not know, however, that they were pro- 
tected, at so early an epoch, in the pos- 
session of their estates. But it is said in 
the year-book of the 42d of Edward IIL, 
to be " admitted for clear law, that if the 
customary tenant or copyholder does not 
perform his services, the lord may seize 
his land as forfeited."! It seems implied 
herein, that so long as the copyholder did 
continue to perform the regular stipula- 
tions of his tenure, the lord was not at 
liberty to divest him of his estate ; and 
this is said to be confirmed by a passage 
in Britton, which has escaped my search ; 
though Littleton intimates that copy- 
holders could have no remedy against 
their lord.| However, in the reign of 
Edward IV., this was put out of doubt by 
the judges, who permitted the copyholder 
to bring his action of trespass against the 
lord for dispossession. 

While some of the more fortunate vil- 
leins crept up into property as well as 
freedom under the name of copyholders, 
the greater part enfranchised themselves 
in a different manner. The law, which 
treated them so harshly, did not take 

villein's land. In Gissmg manor, 39 E. III., the 
jury present, that W. G., a villein by blood, was a 
rebel and ungrateful towards his lord, for which all 
his tenements were seized. His offence was the 
havmg said that- the lord kept four stolen sheep in 
his field. — Blomefield's Norfolk, vol. i., p. 114. 

* Gurdon on Courts Baron, p. 574. 

f Brooke's Abridgm. Tenant par copie, 1. By 
the extent-roll of the manor of Brisingham in 
Norfolk in 1254, it aypears that there were then 
ninety-four copyholders and six cottagers in vil- 
lanage ; the former performing many, but deter- 
mniate services of labour for the lord. — Blome- 
field's Norfolk, vol. i., p. 34. 

X Littl., sect. 77. A copyholder without legal 
remedy may seem little better than a tenant in 
mere villanage, except in name. But though from 
the relation between the lord and copyholder the 
latter might not be permitted to sue his superior, 
yet it does not follow that he might not bring his 
action against any person acting under the lord's 
direction, in which the defendant could not set up 
an illegal authority ; just as, although no writ runs 
against the king, his ministers or oihcers are not 
juslitied in acting under his command contrary to 
law. I wish this note to be considered as correct- 
ing one on p. 88 of this work, where I have said 
that a similar law in France rendered the distinc- 
tion betweea a serf and an homme de poote little 
more than theoretical. 



438 



EUROPE DURING THE MIDDLE AGES. 



[Ckap. VIIL 



away the means of escape, nor was this 
a matter of difficulty in such a country 
as England. To this indeed the unequal 
progression of agriculture and population 
in different counties would have nat- 
urally contributed. Men emigrated, as 
they always must, in search of cheap- 
ness or employment, according to the 
tide of human necessities. But the vil- 
lein, who had no additional motive to 
urge his steps away from his native 
place, might well hope to be forgotten or 
undiscovered wften he breathed a freer 
air, and engaged his voluntary labour to 
a distant master. The lord had indeed 
an action against him ; but there was so 
little communication between remote 
parts of the country, that it might be 
deemed his fault or singular ill-fortune if 
he were compelled to defend himself. 
Even in that case, the law inclined to 
favour him ; and so many obstacles were 
thrown in the way of these suits to re- 
claim fugitive villeins, that they could 
not have operated materially to retard 
their general enfranchisement.* In one 
case indeed, that of unmolested residence 
for a year and a day within a walled city 
or borough, the villein became free, and 
the lord was absolutely barred of his 
remedy. This provision is contained 
even in the laws of William the Conquer- 
or, as contained in Hoveden, and if it be 
not an interpolation, may be supposed to 
have had a view to strengthen the popu- 
lation of those places which were de- 
signed for garrisons. This law, whether 
of William or not, is unequivocally men- 
tioned by Glanvil.f Nor was it a mere 
letter. According to a record in the 6th 
of Edward 11., Sir John Clavering sued 
eighteen villeins of his manor of Cossey, 
for withdrawing themselves therefrom 
with their chattels ; whereupon a writ 
was directed to them ; but six of the 
number claimed to be freemen, alleging 
the Conqueror's charter, and offering to 
prove that they had lived in Norwich, 
paying scot and lot, about thirty years ; 
which claim was admitted. | 

By such means a large proportion of 
the peasantry, before the middle of the 
fourteenth century, had become hired 
labourers instead of villeins. We first 

* See the rules of pleading and evidence in 
questions of villanage fully stated in Mr. Mar- 
grave's argument in the case of Somerset. — How- 
ell's State Trials, vol. xx., p. 38. 

f L. v., c. 5. 

t Blomefield's Norfolk, vol. i., p. 657. I know- 
not how far this privilege was supposed to be im- 
paired by the statute 34 E. III., c. II ; which how- 
ever might, I should conceive, very well stand 
along with it. 



hear of them on a grand scale in an or- 
dinance made by Edward 111., in the 
twenty-third year of his reign. This was 
just after the dreadful pestilence of 1348, 
and it recites that the number of work- 
men and servants having been greatly 
reduced by that calamity, the remainder 
demanded excessive wages from their 
employers. Such an enhancement in 
the price of labour, though founded ex- 
actly on the same principles as regulate 
the value of any other commodity, is too 
frequently treated as a, sort of crime by 
lawgivers, who seem to grudge the poor 
that transient melioration of their lot, 
which the progress of population, or oth- 
er analogous circumstances, will, without 
any interference, very rapidly take away. 
This ordinance therefore enacts that 
every man in England, of whatever con- 
dition, bond or free, of able body, and 
within sixty years of age, not living of 
his own nor by any trade, shall be obli- 
ged, when required, to serve any master 
who is willing to hire him at such wages 
as were usually paid three years since, 
or for some time preceding ; provided 
that the lords of villeins or tenants in vil- 
lanage shall have the preference of their 
labour, so that they retain no more than 
shall be necessary for them. More than 
these old wages is strictly forbidden to 
be offered, as well as demanded. No 
one is permitted, under colour of charity, 
to give alms to a beggar. And, to make 
some compensation to the inferior classes 
for these severities, a clause is inserted, 
as wise, just, and practicable as the rest, 
for the sale of provisions at reasonable 
prices.* 

This ordinance met with so little re- 
gard, that a statute was made in parlia- 
ment two years after, fixing the wages 
of all artificers and husbandmen, with re- 
gard to the nature and season of their la- 
bour. From this time it became a fre- 
quent complaint of the commons, that the 
statute of labourers was not kept. The 
king had in this case, probably, no other 
reason for leaving their grievance unre- 
dressed, than his inability to change the 
order of Providence. A silent alteration 
had been wrought in the condition and 
character of the lower classes during the 
reign of Edward III. This was the ef- 
fect of increased knowledge and refine- 
ment, which had been making a consid- 
erable progress for full half a century, 
though they did not readily permeate the 
cold region of poverty and ignorance. It 
was natural that the country people, or 
outlandish folk, as they were caljod 



* Stat. 23 E. III. 



Part III.] 



ENGLISH CONSTITUTION. 



439 



should repine at the exclusion from that 
enjoyment of competence, and security 
for tlie fruits of their labour, which the 
inhabitants of towns so fully possessed. 
The fourteenth century was, in many 
parts of Europe, the age when a sense 
of political servitude was most keenly 
felt. Thus, the insurrection of the Jac- 
querie in France, about the year 1358, had 
the same character, and resulted in a 
great measure from the same causes, as 
that of the English peasants in 1382. 
And we may account in a similar man- 
ner for the democratical tone of the 
French and Flemish cities, and for the 
prevalence of a spirit of liberty hi Ger- 
many and Swisserland. 

I do not know whether we should at- 
tribute part of this revolutionary con- 
cussion to the preaching of Wicliffe's 
disciples, or look upon both one and 
the other as phenomena belonging to 
that particular epoch in the progress 
of society. New principles, both as to 
civil rule and religion, broke suddenly 
upon the uneducated mind, to render it 
bold, presumptuous, and turbulent. But 
at least 1 make little doubt that the 
dislike of ecclesiastical power, which 
spread so rapidly among the people at 
this season, connected itself with a 
spirit of insubordination and an intol- 
erance of political subjection. Both 
were nourished by the same teachers, 
the lower secular clergy; and however 
distinct we may think a religious ref- 
ormation from a civil anarchy, there was 
a good deal common in the language, by 
which the populace were inflamed to 
either one or the other. Even the scrip- 
tural moralities which were then exhibit- 
ed, and which became the foundation of 
our theatre, afforded fuel to the spirit of 
sedition. The common original, and 
common destination of mankind, with 
every other lesson of equality which re- 
ligion supplies to humble or to console, 
were displayed with coarse and glaring 
features in these representations. The 
familiarity of such ideas has deadened 
their effect upon our minds ; but when 
a rude peasant, surprisingly destitute of 
religious instruction during that corrupt 
age of the church, was led at once to 
these impressive truths, we cannot be 
astonished at the intoxication of mind 
they produced.* 

* I have been more influenced by natural proba- 
bilitifis than testimony, in ascribing this effect to 
WiclilTe's innovations, because the historians are 
prejudiced witnesses against him. Several of 
them depose to the connexion between his opin- 
ions and the rebellion of 1382 ; especially Wal- 



Though I believe that, compared at 
least with the aristocracy of other coun- 
tries, the English lords were guilty of 
very little cruelty or injustice, yet there 
were circumstances belonging to that 
period wliich might tempt them to deal 
more hardly tlian before with their peas- 
antry. The fourteenth century was an 
age of greater magnificence than those 
which had preceded, in dress, in ceremo- 
nies, in buildings ; foreign luxuries were 
known enough to excite an eager de- 
mand among the higher ranks, and yet 
so scarce as to yield inordinate prices ; 
while the landholders were on the other 
hand empoverished by heavy and un- 
ceasing taxation. Hence it is probable 
that avarice, as commonly happens, had 
given birth to oppression ; and if the 
gentry, as I am inclined to believe, had 
become more attentive to agricnltural 
improvements, it is reasonable to conjec- 
ture that those whose tenure obliged 
them to unlimited services of husband- 
ry were more harassed than under their 
wealthy and indolent masters in prece- 
ding times. 

The storm that almost swept away all 
bulwarks of civilized and regular society 
seems to have been long in collecting it- 
self. Perhaps a more sagacious legisla- 
ture might have contrived to disperse it : 
but the commons only presented com- 
plaints of the refractoriness with which 
villeins and tenants in villanage received 
their due services ;* and the exigences 
of government led to the fatal poll-tax 
of a groat, which was the proximate 
cause of the insurrection. By the de- 
mands of these rioters, we perceive that 
territorial servitude was far from ex- 
tinct : but it should not be hastily conclu- 
ded that they were all personal villeins, 
for a large proportion were Kentish- 
men, to whom that condition could not 
have applied; it being a good bar to a 
writ de nativitate probanda, that the par- 
ty's father was born in the county of 
Kent.f 

singham, p. 288. This implies no reflection upon 
VVichffe, any more than the crimes of the anabap- 
tists in Munster do upon Lather. Every one 
knows the distich of John Ball, which compre- 
hends the essence of religious democracy : — 
" When Adam delved and Eve span, 
Where was then the gentleman ?" 
The sermon of this priest, as related by Walsing- 
ham, p, 275, derives its argument for equality from 
the common origin of the species. He is said to 
have been a disciple of Wicliffe. — Turner's Hist, 
of England, vol. ii., p. 420. 

* Stat. 1 R. II., c. G : Rot. Pari., vol. iii., p. 21. 

t 30 E. I., in Fitzherbert. Villanage, apud 
Lambard's Perambulation of Kent, p. 632. Som 
ner nn Gavelkind, p. 72. 



440 



EUROPE DURING THE MIDDLE AGES. 



[Chap. Vlll. 



After this tremendous rebellion, it 
might be expected that the legislature 
would use little indulgence towards the 
lower commons. Such unhappy tumults 
are doubly mischievous, not more from 
the immediate calamities that attend 
them, than from the fear and hatred of 
the people which they generate in the 
elevated classes. The general charter 
of manumission extorted from the king 
by the rioters at Blackheath was ainiul- 
led by proclamation to the sheriffs;* and 
this revocation approved by the lords 
and commons in parliament, who added, 
as was very true, that such enfranchise- 
ment could not be made without their 
consent ; " which they would never give 
to save themselves from perishing alto- 
gether in one day."f Riots were turn- 
ed into treason by a law of the same 
parliament. I By a very harsh statute in 
the 12th of Richard II., no servant or la- 
bourer could depart, even at the expira- 
tion of his service, from the hundred in 
which he lived, without permission under 
the king's seal ; nor might any who 
had been bred to husbandry till twelve 
years old exercise any other calling.^ A 
few years afterward, the commons peti- 
tioned that villeins might not put their 
children to school, in order to advance 
them by the church; "and this for the 
honour of all the freemen of the king- 
dom." In the same parliament they 
complained that villeins fly to cities and 
boroughs, whence their masters cannot 
recover them ; and, if they attempt it, 
are hindered by the people : and prayed 
that the lords might seize their villens in 
such places, without regard to the fran- 
chises thereof. But on both these peti- 
tions the king put in a negative. || 

From henceforward we find little no- 
vice taken of villanage in parliamentary 

* Rymer, t. vii., p. 316, &c. The king holds 
this bitter language to the villeins of Essex, after 
the death of Tyler and execution of the other 
leaders had disconcerted them ; Rustici quidem 
fuistis et estis, in bondagio permanebitis, non ut 
hactenus, sed incomparabiliter viliori, &c. — Wal- 
singham, p. 269. 

t Rot. Pari, vol. iii., p. 100. 
t 5 R. II., c. 7. The words are, riot et rumour 
ri'autres semblables ; rather a general way of crea- 
ting a new treason : but panic puts an end to 
jealousy. 
^ 12 R. II., c. 3. 

II Rot. Pari., 15 R. II., vol. Iii., p. 294, 296. 
The statute 7 H. IV., c. 17, enacts that no one 
shall put his son or daughter apprentice to any 
trade in a borough, unless he have land or rent to 
the value of twenty shillings a year, but that any 
one may put his children to school. The reason 
assigned is tne scarcity of labourers in husbandry, 
in consequence of people living in Upland appren- 
ticing their children. 



records, and there seems to have been a 
rapid tendency to its entire abolition. 
But the fifteenth century is barren of ma- 
terials; and we can only infer, that as the 
same causes which in Pkhvard III.'s time 
had converted a large portion of the peas- 
antry into free labourers, still continued 
to operate, they must silently have ex- 
tinguished the whole system of personal 
and territorial servitude. The latter in- 
deed was essentially changed by the es- 
tablishment of the law of copyhold. 

I cannot presume to conjecture in what 
degree voluntary manumission is to be 
reckoned among the means that contrib- 
uted to the abolition of villanage. Char- 
ters of enfranchisement were very com- 
mon upon the continent. They may 
perhaps have been less so in England. 
Indeed, the statute de donis must have 
operated very injuriously to prevent the 
enfranchisement of villeins regardant, 
who were entailed along with the land. 
Instances, however, occur from time to 
time ; and we cannot expect to discover 
many. One appears as early as the 15th 
year of Henry III., who grants to all 
persons born or to be born within his vil- 
lage of Contishall, that they shall be free 
from all villanage in body and blood, pay- 
ing an aid of twenty shillings to knight 
the king's eldest son, and six shillings a 
year as a quit rent.* So, in the 12th 
of Edward 111., certain of the king's vil- 
leins are enfranchised on payment of a 
fine.f In strictness of law, a fine from 
the villein for the sake of enfranchise- 
ment was nugatory, since all he could 
possess was already at his lord's disposal. 
But custom and equity might easily in- 
troduce different maxims ; and it was 
plainly for the lord's interest to encourage 
his tenants in the acquisition of money 
to redeem themselves, rather than to 
quench the exertions of their industry 
by availing himself of an extreme right. 
Deeds of enfranchisement occur in the 
reigns of Mary and Elizabeth ;J and per- 
haps a commission of the latter princess 
in 1574, directing the enfranchisement 
of her bondmen and bondwomen on cer- 
tain manors upon payment of a fine, is 



* Blomefield's Norfolk, vol. iii., p. 571. 

t Rymer, t. v., p. 44. 

t Gurdon on Courts Baron, p. 596. Madox, 
Formulare Anglicanum, p. 420. Barrington on 
Ancient Statutes, p. 278. It is said in a modem 
book, that villanage was very rare in Scotland, and 
even that no instance exists in records, of an es- 
tate sold with the labourers and their families at- 
tached to the soil. — Pinkerton's Hist, of Scotland, 
vol. i., p. 147. But Mr. Chalmers, in his Caledo- 
nia, has brought several proofs that this assertion 
is too general. 



Part III.] 



ENGLISH CONSTITUTION. 



441 



the last unequivocal testimony to the ex- 
istence of villanage ;* though it is highly 
probable that it existed in remote parts 
of the country some time longer. f 

From this general view of the English 
Beign of Constitution, as it stood about the 
Henry VI. ^i,^g of Henry VI., we must turn 
our eyes to the pohtical revolutions which 
clouded the latter years of his reign. The 
minority of this prince, notwithstanding 
the vices and dissensions of his court, and 
the inglorious discomfiture of our arms 
in France, was not perhaps a calamitous 
period. The country grew more wealthy : 
the law was, on the whole, better ob- 
served ; the power of parliament more 
complete and effectual than in preceding 
times. But Henry's weakness of under- 
standing becoming evident as he reached 
manhood, rendered his reign a perpetual 
minority. His marriage with a princess 
of strong mind, but ambitious and vindic- 
tive, rather tended to weaken the gov- 
ernment and to accelerate his downfall; 
a certain reverence that had been paid to 
the gentleness of the king's disposition 
being overcome by her unpopularity. By 
degrees Henry's natural feebleness de- 
generated almost into fatuity ; and this 
unhappy condition seems to have over- 
taken hiiiL nearly about the time when it 
became an arduous task to withstand the 
assault in preparation against his govern- 
ment. This may properly introduce a 
great constitutional subject, to which 
some peculiar circumstances of our own 
age have imperiously directed the con- 
sideration of parliament. Though the 
proceedings of 1788 and 1810 are un- 
doubtedly precedents of far more author- 
ity than any that can be derived from 
our ancient history, yet as the seal of 
the legislature has not yet been set upon 
this controversy, it is not perhaps alto- 
gether beyond the possibility of future 
discussion ; and at least it cannot be un- 
interesting to look back on those parallel 
or analogous cases, by which the deliber- 
ations of parliament upon the question 
of regency were guided. 

While the kings of England retained 



* Barrington, iibi supra, from Rymer. 

+ There are several later cases reported, wherein 
1 illanage was pleaded, and one of them as late as 
thelothof Jainesl.— (Noy, p. 27.) SeeHargrave's 
argument, State Trials, vol. xx., p. 41. But these 
are so briefly stated, that it is difficult in general to 
understand them. It is obvious, however, that 
judgment was in no case given in favour of the 
plea ; so that we can infer nothing as to the actual 
continuance of villanage. 

It is remarkable, and may be deemed by some 
persons a proof of legal pedantry, that Sir E . Coke, 
while he dilates on the law of villanage, never in- 
timates that it was become antiquated. 



their continental dominions, and Historical 
were engaged in the wars to instances of 
which those gave birth, they '■agencies: 
were of course frequently absent from 
this country. Upon such occasions the 
administration seems at first to have de- 
volved officially on the justiciary, as chief 
servant of the crown. But Henry III. be- 
gan the practice of appointing lieutenants, 
or guardians of the realm (custodesregni), 
as they were more usually , . ,, 

.•' , . -^ during the 

termed, by Avay of temporary absence of 
substitutes. They were usu- our kings in 
ally nominated by the king ^™'"=^ = 
witliout consent of parliament ; and their 
office carried with it the right of exerci- 
sing all the prerogatives of the crown. It 
was of course determined by the king's 
return ; and a distinct statute was neces- 
sary, in the reign of Henry V., to provide 
that a parliament called by the guardian 
of the realm during the king's absejice 
should not be dissolved by that event.* 
The most remarkable circumstance at- 
tending those lieutenancies was, that they 
were sometimes conferred on the heir 
apparent during his infancy. The Black 
Prince, then Duke of Cornwall, was left 
guardian of the realm in 1339, when he 
was but ten years old ;t and Richard his 
son, when still younger, in 1372, during 
Edward III.'s last expeditioninto France. J 
These do not however bear a very close 
analogy to regencies in the strictest 
sense, or substitutions during the natural 
incapacity of the sovereign. Of such 
there had been several instances, before 
it became necessary to supply the defi- 
ciency arising from Henry's derange- 
ment. 1. At the death of John, Atiheac- 
William, earl of Pembroke as- ces.sionof 
sumed the title of rector regis ^^^"^^ "'■' 
et regni, with tlie consent of the loyal 
barons who had just proclaimed the young 
king, and probably conducted the gov- 
ernment in a great measure by their ad- 
vice.^ But the circumstances were too 
critical, and the time is too remote, to 
give this precedent any material weight. 
2. Edward I. being in Sicily at of Edward 
his father's death, the nobility i-; 
met at the Temple church, as we are in- 
formed by a contemporary writer, and, 
after making a new great seal, appointed 
the Archbisliop of York, Edward, earl of 
Cornwall, and the Earl of Glocester, to 
be ministers and guardians of the realm ; 
who accordingly conducted the adminis- 

* 8H. v., c.l. 

t This prince having been sent to Antwerp, six 
commissioners were appointed to open parliament. 
—Rot. Pari., 13 E. III., vol. ii., p. 107. 

J Rymer, t. vi., p. 743. ^ Matt. Paris, p. 243. 



443 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



tration in the king's name until his return.* 
It is here observable, that the Earl of 
Cornwall, though nearest prince of the 
blood, was not supposed to enjoy any su- 
perior title to the regency, wherein he 
was associated with two other nobles. 
But while tlie crown itself was hardly 
acknowledged to be unquestionably he- 
reditary, it would be strange if any no- 
tion of such a right to the regency had 
been entertained. 8.. At the accession 
ofEiiward of Edward III., then fourteen 
^i'- i years old, the parliament, which 
■was immediately summoned, nominated 
four bishops, four earls, and six barons 
as a standing council, at the head of 
which the Earl of Lancaster seems to 
have been placed, to advise the king in 
all business of government. It was an 
article in the charge of treason, or, as it 
was then styled, of accroaching royal 
power, against Mortimer, that lie inter- 
meddled in the king's household without 
the assent of tliis council. f They may 
be deemed therefore a sort of parliament- 
ary regency, though the duration of their 
functions does not seem to be defined, 
of Richard 4. The proceedings at the com- 
II- i mencement of the next reign 

are more worthy of attention. Edward 
III. dying June ^1, 1377, the keepers of 
the great seal next day, in absence of the 
chancellor beyond sea, gave it into the 
young king's hands before his council. 
He immediately delivered it to the Duke 
of Lancaster, and the duke to Sir Nicho- 
las Bonde for safe custody. Four days 
svfterward, the king in council delivered 
the seal to the bishop of St. Davids, who 
affixed it the same day to divers letters 
patent. I Richard was at this time ten 
years and six months old; an age cer- 
tainly very unfit for the personal execu- 
tion of sovereign authority. Yet he was 
supposed capable of reigning without tlie 
aid of a regency. This might be in vir- 
tue of a sort of magic ascribed by law- 
yers to the great seal, the possession jof 
which bars all further inquiry, and ren- 
ders any government legal. The prac- 
tice of modern times, requiring the con- 
stant exercise of the sign manual, has 
■ made a public confession of incapacity 
necessary in many cases, where it might 
have been concealed or overlooked in 
earher periods of the constitution. But 
though no one was invested with the of- 
fice of regent, a council of twelve was 
named by the prelates and peers at the 

* Matt. Westmonast. ap. Brady's History of 
England, vol. ii.,p. 1. 
t Rot. Pari, vol. ii^ p. 52. 
i Rymer, t. vii., p. 171. 



king's coronation, July 16, 1377, without 
whose concurrence no public measure 
was to be carried into effect. I have 
mentioned in another place the modifica- 
tions introduced from time to time by 
parliament, which might itself be deemed 
a great council of regency during the 
first years of Kichard. 

5. The next instance is at the acces- 
sion of Henry VI. This prince of Henry 
was but nine months old at his ^''• 
father's death ; and whether from a more 
evident incapacity for the conduct of 
government in his case than in that of 
Richard II., or from the progress of con- 
stitutional principles in the forty years 
elapsed since the latter's accession, far 
more regularity and deliberation wero 
shown in supplying the defect in the ex- 
ecutive authority. Upon the news ar- 
riving that Henry V. was dead, several 
lords spiritual and temporal assembled, 
on accoimt of the imminent necessity, ia 
order to preserve peace, and provide for 
the exercise of officers appertaining to 
the king. These peers accordingly is- 
sued commissions to judges, sherifls, es- 
clieators,and others, for various purposes, 
and \vrits for a new parliament. This 
was opened by commission under the 
great seal directed to the Duke of Gloces- 
ter, in the usual form, and with the king's 
test.* Some ordinances were made in 
this parliament by the Duke of Gloces- 
ter as commissioner, and some in the 
king's name. The acts of the peers, who 
had taken on themselves the administra- 
tion, and summoned parliament, were 
confirmed. On the twenty-seventh day 
of its session, it is entered upon the roll, 
that the king, " considering his tender 
age, and inabihty to direct in person the 
concerns of his realm, by assent of lords 
and commons, appoints the Duke of Bed- 
ford, or, in his absence beyond sea, the 
Duke of Glocester, to be protector and 
defender of the kingdom and English 
church, and the king's chief counsellor." 
Letters patent were made out to this ef- 
fect : the appointment being however ex- 
pressly during the king's pleasure. Six- 
teen counsellors were named in parlia- 
ment to assist the protector in his admin- 
istration ; and their concurrence was 
made necessary to the removal and ap- 
pointment of officers, except some infe- 
rior patronage specifically reserved to 
the protector. In all important business 
that should pass by order of council, tlie 
whole or major part were to be present ; 
" but if it were such matter that the king 



* Rot. Pari, vol. iv., p. 169. 



Part III.] 



ENGLISH CONSTITUTION, 



443 



hath been accustomed to be counselled 
of, that then the said lords proceed not 
therein without the advice of my lords 
of Bedford or Glocester."* A few more 
counsellors were added by the next par- 
liament, and divers regulations estab- 
lished for their observance.! 

This arrangement was in contraven- 
tion of the late king's testament, which 
had conferred the regency on the Duke 
of Glocester, in exclusion of his elder 
brother. But the nature and spirit of 
these proceedings will be better under- 
stood by a remarkable passage in a roll 
of a later parliament ; where the house 
of lords, in answer to a request of Glo- 
cester, that he might know what authori- 
ty he possessed as protector, remind him 
that in the first parhament of the king,J 
" ye desired to have had ye governaunce 
of yis land ; aflermyng yat hit belonged 
unto you of rygzt, as well by ye mene of 
your birth, as by ye laste wylle of ye 
kyng yat was your broyer, whome God 
assoile ; alleggyng for you such groundes 
and motyves as it was yought to your dis- 
cretion made for your intent ; whereupon, 
the lords spiritual and temporal assembled 
there in parliament, among which were 
there my lordes your uncles, the Bishop 
of Winchester that now liveth, and the 
Duke of Exeter, and your cousin the 
Earl of March that be gone to God, and 
of Warwick, and other in great number 
that now live, had great and long delib- 
eration and advice, searched precedents 
of the governail of the land in time and 
case semblable, when kings of this land 
have been tender of age, took also infor- 
mation of the laws of the land, of such 
persons as be notably learned therein, 
and finally found your said desire not 
caused nor grounded in precedent, nor 
in the law of the land ; the which the 
king that dead is, in his life nor might by 
his last will nor otherwise altre, change, 
nor abroge, without the assent of the 
three estates, nor commit or grant to 
any person governance or rule of this 
land longer than he lived ; but on that 
other behalf, the said lords found your 
said desire not according with the law^s 
of this land, and against the right and 
freedome of the estates of the same 

* Rot. Pari., vol.iv., p. 174, 176. t Id., p. 201. 

t I follow the orthography of the roll, which I 
hope will not be inconvenient to the reader. Why 
this orthography, from obsolete and difficult, so 
frequently becomes almost modern, as will appear 
in the course of these extracts, 1 cannot conjec- 
ture. The usual irregularity of ancient spelling is 
hardly sufficient to account for such variations ; 
but if there be any error, it belongs to the super- 
intendents of that publication, and is not mine. 



land. Howe were it, that it be not 
thought, that any such thing wittingly 
proceeded of your intent ; and neverthe- 
less to keep peace and tranquillity, and 
to the intent to ease and appease you, it 
was advised and appointed by authority 
of the king, assenting the three estates 
of this land, that ye in absence of my 
lord your brother of Bedford, should be 
chief of the king's council, and devised 
unto you a name different from other 
counsellors, not the name of tutor, lieu- 
tenant, governor, nor of regent, nor no 
name that should import authority of 
governance of the land, but the name of 
protector and defensor, which importeth 
a personal duty of attendance to the ac- 
tual defence of the land, as well against 
enemies outward, if case required, as 
against rebels inward, if any were, that 
God forbid ; granting you therewith cer- 
tain power, the which is specified and 
contained in an act of the said parlia- 
ment, to endure as long as it liked the 
king. In the which if the intent of the 
said estates had been, that ye more pow- 
er and authority should have had, more 
should have been expressed therein ; to 
the which appointment, ordinance, and 
act, ye then agreed you as for your per- 
son, making nevertheless protestation, 
that it was not your intent in any wise to 
deroge, or do prejudice unto my lord 
your brother of Bedford by your said 
agreement, as toward any right that he 
would pretend or claim in the gov- 
ernance of this land, and as toward any 
pre-eminence that you might have or be- 
long unto you as chief of council, it is 
plahily declared in the said act and arti- 
cles, subscribed by my said Lord of Bed- 
ford, by yourself, and the other lords of 
the council. But as in parliament to 
which ye be called upon your faith and 
ligeance as Duke of Glocester, as other 
lords be, and not otherwise, we know no 
power nor authority that ye have, other 
than ye as Duke of Glocester should 
have, the king being in parliaiuent, at 
years of mest discretion : We marvail- 
ing with all our hearts that considering 
the open declaration of the authority and 
power belonging to my Lord of Bedford, 
and to you in his absence, and also to 
the king's council, subscribed purely and 
simply by my said Lord of Bedford, and 
by you, that you should in any wise be 
stirred or moved not to content you 
therewith or to pretend you any other : 
Namely considering that the king, bles- 
sed be our lord, is sith the time of the 
said power granted unto you, far gone 
and grown in person, in wit, and under- 



444 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VJII. 



standing, and like with the grace of 
God to occupy his own royal power 
within few years : and forasmuch con- 
sidering the things and causes abovesaid, 
and other many that long were to write, 
We lords aforesaid pray, exhort, and re- 
quire you, to content you with the power 
above said and declared, of the which my 
lord your brother of Bedford, the king's 
eldest uncle, contented him ; and that ye 
none larger power desire, will, nor use ; 
giving you this that is aboven written 
for our answer to your foresaid demand, 
the which we will dwell and abide Avith, 
withouten variance or changing. Over 
this beseeching and praying you in our 
most humble and lowly wise, and also 
requiring you in the king's name, that ye, 
according to the king's commandment, 
contained in his writ sent unto you in 
that behalf, come to this his present par- 
liament, and intend to the good effect 
and speed of matters to be demesned and 
treted in the same, like as of right ye 
owe to do."* 

It is evident that this plain, or rather 
rude address to the Duke of Glocester, 
was dictated by the prevalence of Cardi- 
nal Beaufort's party in council and par- 
liament. But the transactions in the for- 
mer parliament are not unfairly repre- 
sented ; and comparing them with the 
passage extracted above, we may per- 
haps be entitled to infer: 1. That the 
king does not possess any constitutional 
prerogative of appointing a regent during 
the minority of his successor; and 2. 
That neither the heir presumptive, nor 
any other person, is entitled to exercise 
the royal prerogative during the king's 
infancy (or, by parity of reasoning, his 
infirmity), nor to any title that conveys 
them ; the sole right of determining the 
persons by whom, and fixing the limita- 
tions under which, the executive govern- 
ment shall be conducted in the king's 
name and behalf, devolving upon the 
great council of parliament. 

The expression used in the lords' ad- 
dress to the Duke of Glocester relative 
to the young king, that he was far gone 
and grown in person, wit, and understand- 
ing, was not thrown out in mere flattery. 
In two years the party hostile to Gloces- 
ter's influence had gained ground enough 
to abrogate his office of protector, leav- 
ing only the honorary title of chief coun- 
sellor, f For this the king's coronation, 
at eight years of age, was thought a fair 
pretence ; and undoubtedly the loss of 



♦ Rot. Pari., 6 H. VI., vol. iv., p. 326. 
t Id., 8 H. VI., p. 336. 



that exceedingly limited authority which 
had been delegated to the protector could 
not have impaired the strength of govern- 
ment. This was conducted as before by 
a selfish and disunited council ; but the 
king's name was sufficient to legalize 
their measures, nor does any objection 
appear to have been made in parliament 
to such a mockery of the name of mon- 
archy. 

In the year 1454, the thirty-second of 
Henry's reign, his unhappy mal- Henry's 
ady, transmitted perhaps from mental de- 
his maternal grandfather, assu- ■'angemeut, 
med so decided a character of derange- 
ment or imbecility, that parliament could 
no longer conceal from itself the neces- 
sity of a more efficient ruler. This as 
sembly, which had been continued by 
successive prorogations for nearly a year, 
met at Westminster on the 14th of Feb- 
ruary, when the session was opened by 
the Duke of York as king's commission- 
er. Kemp, archbishop of Canterbury and 
chancellor of I]ngland, dying soon after- 
ward, it was judged proper to acquaint 
the king at Windsor by a deputation of 
twelve lords with this and other subjects 
concerning his government. In fact, per- 
haps this was a' pretext chosen in order 
to ascertain his real condition. These 
peers reported to the lords' house two 
days afterward, that they had opened to 
his majesty the several articles of their 
message, but " could get no answer ne 
sign for no prayer ne desire," though they 
repeated their endeavours at three differ- 
ent interviews. This report, with the in- 
structibn on which it was founded, was, 
at their prayer, entered of record in par- 
liament. Upon so authentic a Duke of 
testimony of their sovereign's York made 
infirmity, the peers, adjourning P''''":c'or- 
two days for solemnity or deliberation, 
"elected and nominated Richard, duke 
of York, to be protector and defender of 
the realm of England during the king's 
pleasure." The duke, protesting his in- 
sufficiency, requested, " that in this pres- 
ent parliament, and by authority thereof, 
it be enacted, that of yourself and of your 
ful and mere disposition, ye desire, name, 
and call me to the said name and charge, 
and that of any presumption of myself, I 
take tliem not upon me, but only of the 
due and humble obeisance that I owe to 
do unto the king, our most dread and sov- 
ereign lord, and to you the peerage of this 
land, in whom, by the occasion of the in- 
firmity of our said sovereign lord, resteth 
the exercise of his authority, whose no- 
ble commandments I am as ready to per- 
form and obey as any of his liegeman 



Part III.] 



ENGLISH CONSTITUTION. 



445 



alive, and that at such time as it shall 
please our blessed Creator to restore his 
most noble person to healthful disposi- 
tion, it shall like you so to declare and 
notify to his good grace." To this prot- 
estation the lords answered, that for his 
and their discharge an act of parliament 
should be made, conformably to that en- 
acted in the king's infancy, since they 
were compelled by an equal necessity 
again to choose and name a protector 
and defender. And to the Duke of York's 
request to be informed how far the pow- 
er and authority of his charge should 
extend, they replied, that he should be 
chief of the king's council, and "devised 
therefore to the said duke a name differ- 
ent from other counsellors, not the name 
of tutor, lieutenant, governor, nor of re- 
gent, nor no name that shall import au- 
thority of governance of the land ; but the 
said name of protector and defensor;" 
and so forth, according to the language 
of their former address to the Duke of 
Glocester. An act was passed accord- 
ingly, constituting the Duke of York pro- 
tector of the church and kingdom, and 
chief counsellor of the king during the 
latter's pleasure ; or until the Prince of 
Wales should attain years of discretion, 
on whom the said dignity was immedi- 
ately to devolve. The patronage of cer- 
tain spiritual benefices was reserved to 
the protector, according to the precedent 
of the king's minority, which parliament 
was resolved to follow in every partic- 
ular.* 

It may be conjectured, by the provision 
made ni favour of the Prince of Wales, 
then only two years old, that the king's 
condition was supposed to be beyond 
hope of restoration. But in about nine 
months he recovered sufficient speech 
and recollection to supersede the Duke 
of York's protectorate.! The succeed- 
ing transactions are matter of familiar, 
though not, perhaps, veiy perspicuous 
history. The king was a prisoner in his 
enemies' hands after the affair at St. Al- 
bans,J when parliament met in July, 1455. 

* Rot. Pari., vol. v., p. 241. 

t Paston Letters, vol. i., p. 8L The proofs of 
sound mind given in this letter are not very deci- 
sive, but the wits of sovereigns are never weighed 
in golden scales. 

t This may seem an improper appellation for 
what is usually termed a battle, wherein 5000 men 
are said to have fallen. But I rely here upon my 
faithful guide, the Paston Letters, p. 100, one of 
which, written immediately after the engagement, 
says that only six score were killed. Surely this 
testimony outweighs a thousand ordinary chroni- 
clers. And the nature of the action, which was a 
sudden attack on the town of St. Albans, without 
any pitched combat, renders the larger number im- 



In this session little was done except re- 
newing the strongest oaths of allegiance 
to Henry and his family. But llie two 
houses meeting again after a prorogation 
to November 12, during which time the 
Duke of York had strengthened his par- 
ty, and was appointed by commission the 
king's lieutenant to open the parliament, 
a proposition was made by the commons, 
that " whereas the king had deputed the 
Duke of York as his commissioner to 
proceed in this parliament, it was thought 
by the commons, that if the king hereaf- 
ter could not attend to the protection of 
the country, an able person should be ap- 
pointed protector, to whom they miglit 
have recourse for redress of injuries ; 
especially as great disturbances had late- 
ly arisen in the west through the feuds 
of the Earl of Devonshire and Lord Bon- 
vile."* The Archbishop of Canterbury 
answered for the lords, that they would 
take into consideration what the com- 
mons had suggested. Two days after- 
ward, the latter appeared again with a re- 
quest conveyed nearly in the same terms. 
Upon their leaving the chamber, the 
archbishop, who was also chancellor, mo- 
ved the peers to answer what should be 
done in respect of the request of the com- 
mons ; adding that, " it is understood 
that they will not further proceed in mat- 
ters of parliament to the time that they 
have answer to their desire and request." 
This naturally ended in the reappoint- 
ment of the Duke of York to his charge 
of protector. The commons indeed were 
determined to bear no delay. As if ig- 
norant of what had been resolved in con- 
sequence of their second request, they 
urged it a third time on the next day of 
meeting; and received for answer that 
" the king our said sovereign lord, by the 
advice and assent of his lords spiritual 
and temporal being in this present parlia- 
ment, had named and desired the Duke 
of York to be protector and defensor of 
this land." It is worthy of notice, that 
in these words, and indeed in effect, as 
appears by the whole transaction, the 
house of peers assumed an exclusive 
right of choosing the protector, though in 
the act passed to ratify their election, the 
commons' assent, as a matter of course, 
is introduced. The last year's precedent 
was followed in the present instance, ex- 
cepting a remarkable deviation ; instead 
of the words "during the king's pleas- 
probable. Whethamstede, himself abbot of St. Al- 
bans at the time, makes the Duke of York's army 
but 3000 fighting men, p. 352. 

* Sec some account of these in Paston Letters, 
vol. i., p. 114. 



446 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



ure," the duke was to hold his office " un- 
til he should be discharged of it by the 
lords in parliament."* 

This extraordinary clause, and the 
slight allegations on which it was thought 
fit to substitute a vicegerent for the 
reigning monarch, are sufficient to prove, 
even if the common historians were si- 
lent, that whatever passed as to this sec- 
ond protectorate of the Duke of York 
was altogether of a revolutionary com- 
plexion. In the actual circumstances of 
civil blood already spilled and the king in 
captivity, we may justly wonder that so 
much regard was shown to the regular 
forms and precedents of the constitution. 
But the duke's natural moderation will 
account for part of this, and the temper 
of the lords for much more. That as- 
sembly appears for the most part to have 
been faithfully attached to the house of 
Lancaster. The partisans of Richard 
were found in the commons and among 
the populace. Several months elapsed 
after the victory of St. Albans, before an 
attempt was thus made to set aside a 
sovereign, not labouring, so far as we 
know, under any more notorious infir- 
mity than before. It then originated in 
the commons, and seems to have receiv- 
ed but an unwilling consent from the 
upper house. Even in constituting the 
Duke of York protector over the head 
of Henry, whom all men despaired of 
ever seeing in a state to face the dangers 
of such a season, the lords did not forget 
the rights of his son. By this latter in- 
strument, as well as by that of the pre- 
ceding year, the duke's office was to 
cease upon the Prince of Wales arriving 
at the age of discretion. 

But what had been long propagated in 
Duke of secret, soon became familiar to 
York's the public ear; that the Duke 

*^'own " "*^ ^^ ^°^''^ ^^^^ ^^^'"^ ^° ^^® throne. 
He was unquestionably heir 
general of the royal line, through his 
mother, Anne, daughter of Roger Morti- 
mer, earl of March, son of Philippa, 
daughter of Lionel, duke of Clarence, 
third son of Edward III. Roger Morti- 
mer's eldest son, Edmund, had been de- 
clared heir presumptive by Richard II. ; 
but his infancy during the revolution that 
placed Henry IV. on the throne had 
caused his pretensions to be passed over 
in silence. The new king, however, was 
induced, by a jealousy natural to his situ- 
ation, to detain the Earl of March in cus- 
tody. Henry V. restored his liberty ; 
and though he had certainly connived for 



» Rot. Pari, vol. v., p. 284—290. 



a while at the conspiracy planned by his 
brother-in-law the Earl of Cambridge and 
Lord Scrop of Masham to place the crown 
on his head, that magnanimous prince 
gave him a free pardon, and never testi- 
fied any displeasure. The present Duke 
of York was honoured by Henry VI. with 
the highest trusts in France and Ireland ; 
such as Beaufort and Glocester could 
never have dreamed of conferring on 
him, if his title to the crown had not been 
reckoned obsolete. It has been very 
pertinently remarked, that the crime per- 
petrated by Margaret and her counsellors 
in the death of the Duke of Glocester was 
the destruction of the house of Lancas- 
ter.* From this time the Duke of York, 
next heir in presumption while the king 
was childless, might innocently contem- 
plate the prospect of royalty ; and when 
such ideas had long been passing through 
his mind, we may judge how reluctantly 
the birth of Prince Edward, nine years 
after Henry's marriage, would be admitted 
to disturb them. The queen's administra- 
tion unpopular, careless of national inter- 
ests, and partial to his inveterate enemy, 
the Duke of Somerset ;t the king incapa- 
ble of exciting fear or respect ; himself 
conscious of powerful alliances and uni- 
versal favour ; all these circumstances 
combined could hardly fail to nourish 
these opinions of hereditary right, which 
he must have imbibed from his infancy. 

The Duke of York preserved through 
the critical season of rebellion such mod- 
eration and humanity, that we may par- 
don him that bias in favour of his own 
pretensions to which he became himself 
a victim. Margaret perhaps, by her san- 
guinary violence in the Coventry parlia- 
ment of 1460, where the duke and all his 
adherents were attainted, left him not the 
choice of remaining a subject with impu- 
nity. But with us, who are to weigh 
these ancient factions in the balance of 
wisdom and justice, there should be no 
hesitation in deciding that the house of 
Lancaster Avere lawful sovereigns of 
England. I am indeed astonished, that 
not only such historians as Carte, who 
wrote undisguisedly upon a Jacobite sys- 
tem, but even men of juster principles, 
have been inadvertent enough to mention 
the right of the house of York. If the 
original consent of the nation, if three 
descents of the crown, if repeated acts 
of parliament, if oaths of allegiance from 



* Hall, p. 210. 

t The ill-will of York and the queen began aa 
early as 1449, as we learn from an unequivocal tes- 
timony, a letter of that date in the Paston collec- 
tion, vol. i., p. 26. 



Part [II] 



ENGLISH CONSTITUTION. 



447 



the V, hole kingdom, and more particularly 
from those who now advanced a contrary 
pretension, if undisturbed, unquestioned 
possession during sixty years could not 
secure the reigning family against a mere 
defect in their genealogy, when were the 
people to expect tranquillity \ Sceptres 
were committed, and governments were 
instituted, for public protection and pub- 
lic happiness, not certainly for the benefit 
of rulers or for the security of particular 
dynasties. No prejudice has less in its 
favour, and none has been more fatal to 
the peace of mankind, than that which 
regards a nation of subjects as a family's 
private inheritance. For, as this opinion 
induces reigning princes and their cour- 
tiers to look on the people as made only 
to obey them, so when the tide of events 
has swept them from their thrones, it be- 
gets a fond hope of restoration, a sense 
of injury and of imprescriptible rights, 
which give the show of justice to fresh 
disturbances of public ordei and rebell- 
ions against established authority. Even 
in cases of unjust conquest, which are far 
stronger than any domestic revolution, 
time heals the injury of wounded inde- 
pendence, the forced submission to a vic- 
torious enemy is changed into spontane- 
ous allegiance to a sovereign, and the 
laws of God and nature enjoin the obe- 
dience that is challenged by reciprocal 
benefits. But far more does every na- 
tional government, however violent in 
its origin, become legitimate, when uni- 
versally obeyed and justly exercised, 
the possession drawing after it the right ; 
not certainly that success can alter the 
moral character of actions, or privilege 
usurpation before the tribunal of human 
opinion, or in the pages of history, but 
that the recognition of a government 
by the people is the binding pledge of 
their allegiance so long as its corre- 
sponding duties are fulfilled.* And thus 
the law of England has been held to 
annex the subject's fidelity to the reign- 
ing monarch, by whatever title he may 
have ascended the throne, and whoever 
else may be its claimant. f But the stat- 
ute of 11th of Henry VII., c. 1, has fur- 
nished an unequivocal commentary upon 
this principle ; when, alluding to the con- 

* Upon this great question the fourth discourse 
in Sir Michael Foster's Reports ought particularly 
to be read. Strange doctrines have been revived 
lately, and though not exactly referred to the con- 
stitution of this country, yet, as general principles, 
easily applicable to it ; which, a century since, 
would have tended to shake the present family in 
the throne. 

+ Hale's Pleas of the Crown, vol. i., p. CI, 101 
(edit. 1736). 



demnations and forfeitures by which 
those alternate successes of the white 
and red roses had almost exhausted the 
noble blood of England, it enacts that 
" no man for doing truth and faithful ser- 
vice to the king for the time being, be 
convict, or attaint of high treason, nor of 
other offences, by act of parliament or 
otherwise." 

Though all classes of men and all parts 
of England were divided into ^^ ^ nh 
factions by this unhappy con- Lancas- 
test, yet the strength "of the ""jans and 
Yorkists lay in London and the ^°'''"^'^' 
neighbouring counties, and generally 
among the middling and lower people. 
And this is what might naturally be ex- 
pected. For notions of hereditary right 
take easy hold of the populace, Avho feel 
an honest sympathy for those whom they 
consider as injured ; while men of noble 
birth and high station have a keener sense 
of personal duty to their sovereign, and 
of the baseness of deserting their al- 
legiance. Notwithstanding the wide- 
spreading influence of the Nevils, most 
of the nobihty were well affected to the 
reigning dynasty. We have seen how 
reluctantly they acquiesced in the second 
protectorate of the Duke of York, after 
the battle of St. Albans. Thirty-two 
temporal peers took an oath of fealty to 
Henry and his issue in the Coventry par- 
liament of 1460, which attainted the 
Duke of York and the earls of Warwick 
and Sahsbury.* And, in the memorable 
circumstances of the duke's claim person- 
ally made in parliament, it seems mani- 
fest that tlie lords complied not only 
with hesitation, but unwillingness ; and in 
fact testified their respect and duty for 
Henry by confirming the crown to him 
during his life.f The rose of Lancaster 
blushed upon the banners of the Staf- 
fords, the Percies, the Veres, the Hol- 
lands, and the Courtneys. All these il- 
lustrious families lay crushed for a time 
under the ruins of their party. But the 
course of fortune, which has too great a 
mastery over crowns and sceptres to be 
controlled by men's affections, invested 

* Rot. Pari., vol. v., p. 351. 

t Rot. Pari., p. 375. This entry in the roll is 
highly interesting and important. It ought to be 
read in preference to any of our historians. Hume, 
wlio drew from inferior sources, is not altogether 
accurate. Yet one remarkable circumstance, told 
by Hall and other chroniclers, that the Duke of 
York stood by the throne, as if to claim it, though 
omitted entirely in the roll, is confirmed by Wheth- 
amstede, abbot of St. Albans, who was probably 
then present (p. 484, edit. Hearne). This shows 
that we should only doubt and not reject, unless 
upon real grounds of suspicion, the assertions of 
secondary writers. 



448 



EUROPE DURING THE MIDDLE AGES. 



[Chap. VIII. 



Edward IV. with a possession, which the 
general consent of the nation both sanc- 
tioned and secured. Tliis was effected 
in no shght degree by the furious spirit 
of Margaret, wlio began a system of ex- 
teniiination by acts of attainder, and ex- 
ecution of prisoners, that created ablior- 
rence, tliough it did not prevent imitation. 
And the barbarities of her nortliern army, 
whom slie led towards London after the 
battle of Wakefield, lost the Lancastrian 
cause its former friends,* and might just- 
ly convince reflecting men, that it were 
better to risk the chances of a new dy- 
nasty, than trust the kingdom to an ex- 
asperated faction. 

A period of obscurity and confusion 
Edward IV ^^^^ues, during which we have 
as little insight into constitu- 
tional as general history. There are no 
contemporary chroniclers of any value, 
and the rolls of parhament, by whose 
light we have hitherto steered, become 
mere registers of private bills, or of peti- 
tions relating to commerce. The reign 
of Edwai-d IV. is the first during which 
no statute was passed for the redress of 
grievances or maintenance of the sub- 
ject's liberty. Nor is there, if I am cor- 
rect, a single petition of this nature upon 
the roll. Whether it were that the com- 
mons had lost too much of their ancient 
courage to present any remonstrances, 
or that a wilful omission has vitiated the 
record, is hard to determine ; but we cer- 
tainly must not imagine, that a govern- 
ment cemented with blood poured on the 
scaffold as well as in the field, under a 
passionate and unprincipled sovereign, 
would afford no scope for the just ani- 
madversion of parliament.! The reign 
of Edward IV. was a reign of terror. 
One half of the noble families had been 
thinned by proscription ; and though gen- 
erally restored in blood by the reversal 
of their attainders, a measure certainly 
deserving of much approbation, were 
still under the eyes of vigilant and invet- 
erate enemies. The opposite faction 

* The abbey of St. Albans was stripped by the 
queen and her army after the second battle fought 
at that place, Feb. 17, 1461 ; which changed Wheth- 
amstede, the abbot and historiographer, from a vio- 
lent Lancastrian into a Yorkist. His change of 
party is quite sudden, and amusing enough. See 
too the Faston Letters, vol. i., p. 206. Yet the 
Paston family were originally Lancastrian, and re- 
turned to that side in 1470. 

t There are several instances of violence and 
oppression apparent on the rolls during this reign, 
but not proceeding from the crown. One of a re- 
markable nature, vol. v., p. 173, was brought for- 
ward to throw an odium on the Duke of Clarence, 
who had been concerned in it. Several passages 
indicate the character of the Duke of Glocester. 



would be cautious how they resisted a 
king of their own creation, while the 
hopes of their adversaries were only dor- 
mant. And indeed, without relying on 
this supposition, it is commonly seen, 
that when temporary circumstances have 
given a king the means of acting in dis- 
regard of his subjects' privileges, it is a 
very difficult undertaking for them to re- 
cover a liberty which has no security so 
eflectual as habitual possession. 

Besides the several proceedings against 
the Lancastrian party, which migiit be 
extenuated by the common pretences, re- 
taliation of similar proscriptions, security 
for the actual government, or just pun- 
ishment of rebellion against a legitimate 
heir, there are several reputed instances 
of violence and barbarity in the reign of 
Edward IV., which have not such plau- 
sible excuses. Every one knows the 
common stories of the citizen who was 
attainted of treason for an idle speech 
that he would make his son heir to the 
crown, the house where he dwelt ; and 
of Thomas Burdett, Avho wished the 
horns of his stag in the belly of him 
who had advised the king to shoot it. 
Of the former I can assert nothing, though 
I do not believe it to be accurately re- 
ported. But certainly the accusation 
against Burdett, however iniquitous, was 
not confined to these frivolous words , 
which indeed do not appear in his en- 
dictment,* or in a passage relative to his 
conviction in the roll of parliament. 
Burdett was a servant and friend of the 
Duke of Clarence, and sacrificed as a 
preliminary victim. It was an article 
of charge against Clarence that he had 
attempted to persuade the people that 
" Thomas Burdett his servant, which was 
lawfully and truly attainted of treason, 
was wrongfully put to death."t There 
could indeed be no more oppressive 
usage inflicted upon meaner persons than 
this attainder of the Duke of Clarence, 
an act for which a brother could not be 
pardoned had he been guilty ; and which 
deepens the shadow of a tyrannical age, 
if, as it seems, his offence towards Ed- 
ward was but levity and rashness. 



* See in Cro. Car. 120, the endictment against 
Burdett for compassing the king's death and for 
that purpose conspiring with Stacie and Blake to 
calculate his nativity and his son's, ad sciendum 
quando lidem rex et Edwardus ejus filius morien- 
tur : Also for the same end dispersing divers rhymes 
and ballads de murmurationibus, seditionibus et 
proditoriis excitationibus, factas et fabricatas apnd 
Holbourn, to the intent that the people might 
withdraw their love fiom the king and desert him, 
ac erga ipsum regem levarent, ad finalein destruc 
tionem ipsorum regis ac domini principis, &c. 

t Rot. Pari., vol. vi., p. 193. 



Part III.] 



ENGLISH CONSTITUTION. 



449 



But whatever acts of injustice we may 
attribute, from authority or conjecture, to 
Edward's government, it was very far 
from being unpopular. His love of pleas- 
ure, his affability, his courage, and beauty, 
gave him a credit with his subjects which 
he had no real virtue to challenge. This 
restored him to the throne, even against 
the prodigious influence of Warwick, and 
compelled Henry VII. to treat his mem- 
ory with respect, and acknowledge him 
as a lawful king.* The latter years of 
his reign were passed in repose at home 
after scenes of unparalleled convulsions, 
and in peace abroad after more than a 
century of expensive warfare. His de- 
mands of subsidy were therefore moder- 
ate, and easily defrayed by a nation who 
were making rapid advances towards op- 

* The rolls of Henry Vll.'s first parliament are 
full of an absurd confusion in thought and language, 
which is rendered odious by the purposes to which 
it IS applied. Both Henry VI. and Kdward IV. are 
considered as lawful kings ; except in one instance, 
where Alan Cotterell, petitioning for the reversal 
of his attainder, speaks of Edward "late called 
Edward IV." (vol. vi., p. 290). But this is only the 
language of a private Lancastrian. And Henry 
VI. passes for having been king during liis short 
restoration in 1470, when Edward had been nine 
years upon the throne. For the Earl of Oxford is 
said to have been attainted " for the true allegiance 
and service he owed and did to Henry VI., at 
Barnet field and otherwise" (p. 281). This might 
be reasonable enough on the true principle that 
allegiance is due to a king de facto ; if indeed we 
could determine who was the king de facto on the 
morning of the battle of Barnet. But this princi- 
ple was not fairly recognised. Richard 111. is al- 
ways called, "in deed and not in right. King of 
England." Nor was this merely founded on his 
usurpation as against his nephew. For that un- 
fortunate boy is little better treated, and in the act 
of resumption, I H. VIL, while Edward IV. is 
styled " late king," appears only with the denomi- 
nation of " Edward his son, late called Edward 
v.," p. 336. Who then was king after the death 
of Edward IV. T And was his son really illegiti- 
mate, as a usurping uncle pretended ? Or did 
the crime of Kichard, though punished in him, 
enure to the benefit of Henry .' These were points 
which, like the fate of the young princes in the 
Tower, he chose to wrap in discreet silence. But 
the first question he seems to have answered in 
his own favour. For Richard himself, Howard, 
duke of Norfolk, Lord Lovel, and some others, are 
attainted (p. 276), for ' traiterously intending, corn- 
passing, and imagining' the death of Henry ; of 
course before or at the battle of Bosworth; and 
while his right, unsupported by possession, could 
have rested only on an hereditary title, which it 
was an insult to the nation to prefer. These mon- 
strous proceedings e.xplain the necessity of that 
conservative statute to which I have already allu- 
ded, which passed in the eleventh year of his reign, 
and aftorded as much security for men following 
the plain hne of rallying round the standard of their 
country as mere law can offer. There is some ex- 
traordinary reasoning upon this act in Carte's His- 
tory, vol. ii., p. 844, for the purpose of proving that 
the adherents of George II. would not be protected 
by it on the restoration of the true blood. 



ulence. According to Sir John Fortes- 
cue, nearly one fifth of the whole king. 
dojtr had come to the king's hand by for- 
feiture, at some time or other since tho 
commencement of his reign.* Many in- 
deed of these lands had been restored, 
and others lavished away in grants, but 
the surplus revenue must still have been 
considerable. 

Edward IV. was the first who practised 
a new method of taking his subjects' 
money without consent of parliament, 
under the plausible name of benevolen- 
ces. These came in place of the still 
more plausible loans of former monarchs, 
and were principally levied on the weal- 
thy traders. Though no complaint ap- 
pears in the parliamentary records of his 
reign, which, as has been observed, com- 
plain of nothing, the illegality was un- 
doubtedly felt and resented. In the re- 
markable address to Richard by that 
tumultuary meeting which invited him 
to assume the crown, we find, among 
general assertions of the state's decay 
through misgovernment, the following 
strong passage : " For certainly we be 
determined rather to aventure and com- 
mitte us to the perill of owre lyfs and 
jopardie of deth, than to lyve in such 
thraldome and bondage as we have lyved 
long tyme heretofore oppressed and in- 
jured by extortions and newe impositions, 
ayenstthe lawes of God and man, and the 
libertie, old policie, and laws of this 
realme, whereyn every Englishman is in- 
herited."! Accordingly, in Richard IIl.'s 
only parliament, an act was passed, 
which, after reciting in the strongest 
terms the grievances lately endured, 
abrogates and annuls for ever all exac- 
tions under the name of benevolence. { 
The liberties of this country were at 
least not directly impaired by the usur- 
pation of Richard. But from an act so 
deeply tainted with moral guilt, as well 
as so violent in all its circumstances, no 
substantial benefit was likely to spring-. 
W^hatever difliculty there may be, and I 
confess it is not easy to be surmounted, 
in deciding upon the fate of Richard's 
nephews after they were immured in 
the Tower, the more public parts of the 
transaction bear unequivocal testimony 
to his ambitious usurpation. It would 
therefore be foreign to the purpose of 
this chapter to dwell upon his assumption 
of the regency, or upon the sort of elec- 
tion, however curious and remarkable, 
which gave a pretended authority to his 
usurpation of the throne. Neither of 

* DilT. of Absolute and Limited Monarchy, p. 83 
t Rot. Pari., vol. vi., p. 241. J I R. III., c. 2 



450 



EUROPE DURING THE MIDDLE AGE3. 



[Chap. IX. 



these has ever been alleged by any- 
party in the way of constitutional prece- 
dent. 
At this epoch I terminate these inqui- 
ries into tlie English constitu- 
conciusion. ^.^^ . ^ sketch very imperfect I 

fear and unsatisfactory, but which may 
at least answer the purpose of fixing the 
reader's attention on the principal ob- 
jects, and of guiding him to the purest 
fountains of constitutional knowledge. 
From the accession of the house of Tu- 
dor a new period is to be dated in our 
history ; far more prosperous in the dif- 
fusion of opulence and the preservation 
of general order than the preceding, but 
less distinguished by the spirit of free- 
dom and jealousy of tyrannical power. 
We have seen, through the twilight of 
our Anglo-Saxon records, a form of civil 
policy established by our ancestors, 
marked, like the kindred governments 
of the continent, with aboriginal Teu- 
tonic features ; barbarous indeed, and in- 
sufficient for the great ends of society, 
but capable and worthy of the improve- 
ment it has received, because actuated by 
a sound and vital spirit, the love of free- 
dom and of justice. From these princi- 
ples arose that venerable institution, 
which none but a free and simple people 
could have conceived, trial by peers ; an 
institution common in some degree to 
other nations, but which, more widely 
extended, more strictly retained, and bet- 
ter modified among ourselves, has be- 
come perhaps the first, certainly among 
the first, of our securities against arbitra- 
ry government. We have seen a foreign 
conqueror and his descendants trample 
almost alike upon the prostrate nation, 
and upon those who had been compan- 
ions of their victory, introduce the ser- 
vitudes of feudal law with more than 



their usual rigour, and establish a large 
revenue by continual precedents upon a 
system of universal and prescriptive ex- 
tortion. But the Norman and English 
races, each unfit to endure oppression, 
forgetting their animosities in a common 
interest, enforce by arms the concession 
of a great charter of liberties. Privile- 
ges, wrested from one faithless monarch, 
are preserved with continual vigilance 
against the machinations of another ; the 
rights of the people become more precise, 
and their spirit more magnanimous, du- 
ring the long reign of Henry III. With 
greater ambition and greater abilities 
than his fatlier, Edward I. attempts in 
vain to govern in an arbitrary manner, 
and has the mortification of seeing his 
prerogative fettered by stiU more impor- 
tant limitations. The great council of 
the nation is opened to the representa- 
tives of the commons. They proceed 
by slow and cautious steps to remonstrate 
against public grievances, to check the 
abuses of administration, and sometimes 
to chastise public delinquency in the offi- 
cers of the crown. A number of reme- 
dial provisions are added to the statutes ; 
every Englishman learns to remember 
that he is the citizen of a free state, and 
to claim the common law as his birth- 
right, even though the violence of power 
should interrupt its enjoyment. It were 
a strange misrepresentation of history to 
assert that the constitution had attained 
any thing like a perfect state in the fif- 
teenth century ; but I know not whether 
there are any essential privileges of our 
countrymen, any fundamental securities 
against arbitrary power, so far as they 
depend upon positive institution, which 
may not be traced to the time when the 
house of Plantagenet filled the English 
throne. 



.'&^ 



CHAPTER IX. 

ON THE STATE OF SOCIETY IN EUROPE DURING THE MIDDLE AGES. 



PART I. 

Introduction. — Decline of Literature in the latter 
period of the Roman Empire. — Its Causes. — 
Corruption of the Latin Language. — Means by 
which it was effected. — Formation of new Lan- 
guages. — General Ignorance of the Dark Ages. — 
Scarcity of Books. — Causes that prevented the 
total Extinction of Learning. — Prevalence of 
Superstition and Fanaticism.— General Corrup- 
tion of Religion. — Monasteries— their Effects. — 
Pilgrimages. — Love of Field Sports. — State of 



Agriculture — of Internal and Foreign Trade 
down to the End of the Eleventh Century. — Im- 
provement of Europe dated from that Age. 

It has been the object of every prece- 
ding chapter of this work either to trace 
the civil revolutions of states during the 
period of the middle ages, or to investi- 
gate, with rather more minute attention, 
their political institutions. There re- 
mains a large tract to be explored, if we 



Part I] 



STATE OF SOCIETY. 



451 



would complete the circle of historical 
information, and give to our knowledge 
that copiousness and clear perception 
which arise from comprehending a sub- 
ject under numerous relations. The 
philosophy of history embraces far more 
than the wars and treaties, the factions 
and cabals of common political nar- 
ration ; it extends to whatever illustrates 
the character of the human species in a 
particular period, to their reasonings and 
sentiments, their arts and industry. Nor 
is this comprehensive survey merely in- 
teresting to the speculative philosopher ; 
without it, the statesman would form 
very erroneous estimates of events, and 
find himself constantly misled in any an- 
alogical application of them to present 
circumstances. Nor is it an uncommon 
source of error to neglect the general 
signs of the times, and to deduce a prog- 
nostic from some partial coincidence 
with past events, where a more enlarged 
comparison of all the facts that ought to 
enter into the combination would destroy 
the whole parallel. The philosophical 
student, however, will not follow the 
antiquary into his minute details ; and 
though it is hard to say what may not 
supply matter for a reflecting mind, there 
is always some danger of losing sight of 
grand objects in historical disquisition, 
by too laborious a research into trifles. 
I 'may possibly be thought to furnish, in 
some instances, an example of the error 
I condemn. But in the choice and dis- 
position of topics to which the present 
chapter relates, some have been omitted 
on account of their comparative insignif- 
icance, and others on account of their 
want of connexion with the leading sub- 
ject. Even of those treated I can only 
undertake to give a transient view; and 
must bespeak the reader's candour to re- 
member, that passages which, separately 
taken, may often appear superficial, are 
but parts of the context of a single chap- 
ter, as the chapter itself is of an entire 
work. 

The Middle Ages, according to the di- 
vision I have adopted, comprise about 
one thousand years, from the invasion of 
France by Clovis to that of Naples by 
Charles VIII. This period, considered 
as to the state of society, has been es- 
teemed dark through ignorance, and bar- 
barous through poverty and want of re- 
finement. And although this character 
is much less applicable to the two last 
centuries of the period than to those 
which preceded its commencement, yet 
we cannot expect to feel, in respect of 
ages at best imperfectly civilized and 
Ff 2 



slowly progressive, that interest which 
attends a more perfect development of 
human capacities, and more brilhant ad- 
vances in improvement. The first moi- 
ety indeed of these ten ages is almost 
absolutely barren, and presents little but 
a catalogue of evils. The subversion of 
the Roman empire, and devastation of its 
provinces by barbarous nations, either 
immediately preceded, or were coinci- 
dent with the commencement of the 
middle period. We begin in darkness 
and calamity; and though the shadows 
grow fainter as we advance, yet we are 
to break off" our pursuit as the morning 
breathes upon us, and the twilight red- 
dens into the lustre of day. 

No circumstance is so promment on 
the first survey of society du- jj^„j„3„r 
ring the earlier centuries of this learning in 
period as the depth of ignorance Roman em 
in which it was immersed ; and '^"^' 
as from this, more than any single cause, 
the moral and social evils which those 
ages experienced appear to have been 
derived and perpetuated, it deserves to 
occupy the first place in the arrangement 
of our present subject. We must not 
altogether ascribe the ruin of literature 
to the barbarian destroyers of the Roman 
empire. So gradual, and apparently so 
irretrievable a decay, had long before 
spread over all liberal studies, that Jt is 
impossible to pronounce whether they 
would not have been almost equally ex- 
tinguished if the august throne of the 
Cesars had been left to moulder by its 
intrinsic weakness. Under the paternal 
sovereignty of Marcus Aurelius, the ap- 
proaching declension of learning might 
be scarcely perceptible to an incurious 
observer. There was much indeed to 
distinguish his times from those of Au- 
gustus ; much lost in originality of ge- 
nius, in correctness of taste, in the mas- 
terly conception and consummate finish 
of art, in purity of the Latin, and even 
of the Greek language. But there were 
men who made the age famous, grave 
lawyers, judicious historians, wise phi- 
losophers ; the name of learning was 
honourable, its professors were encour- 
aged ; and along the vast surface of the 
Roman empire there was perhaps a great- 
er number, whose minds were cultivated 
by intellectual disciphne, than under the 
more brilliant reign of the first emperor. 

It is not, I think, very easy to give a 
perfectly satisfactory solution of j^^^^^^ 
the rapid downfall of literature 
between the ages of Antonine and of 
Diocletian. Perhaps the prosperous con- 
dition of the empire from Trajan to Mar- 



452 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX, 



cus Aurelius, and the patronage which 
those good princes bestowed on letters, 
gave an artificial health to them for a 
moment, and suspended the operation of 
a disease which had already begun to un- 
dermine their vigour. Perhaps the in- 
tellectual energies of mankind can never 
remain stationary; and a nation that 
ceases to produce original and inventive 
minds, born to advance the landmarks of 
knowledge or skill, will recede from step 
to step, till it loses even the secondary 
merits of imitation and industry. During 
the third century, not only there were no 
great writers, but even few names of in- 
different writers have been recovered by 
the diligence of modern inquiry.* Law 
neglected, philosophy perverted till it be- 
came contemptible, history nearly silent, 
the Latin tongue growing rapidly barba- 
rous, poetry rarely and feebly attempted, 
art more and more vitiated; such were 
the symptoms by which the age previous 
to Constantine announced the decline 
of human intellect. If we cannot fully 
account for this unhappy change, as I 
have observed, we must, however, assign 
much weight to the degradation of Rome 
and Italy in the system of Severus and 
his successors, to the admission of bar- 
barians into the military and even civil 
dignities of the empire, to the discour- 
aging influence of provincial and illiterate 
sovereigns, and to the calamities which 
followed for half a century the first inva- 
sion of the Goths and the defeat of De- 
cius. To this sickly condition of htera- 
ture the fourth century supplied no per- 
manent remedy. If under the house 
of Constantine the Roman world suf- 
fered rather less from civil warfare or 
barbarous invasions than in the prece- 
ding age, yet every other cause of de- 
chne just enumerated prevailed with ag- 
gravated force ; and the fourth century 
set in storms, sufficiently destructive in 
themselves, and ominous of those calam- 
ities which humbled the majesty of Rome 
at the commencement of the ensuing pe- 
riod, and overwhelmed the Western Em- 
pire in absolute and final ruin before its 
termination. 

The diffusion of literature is perfectly 
distinguishable from its advancement, and 
whatever obscurity we may find in ex- 
plaining the variations of the one, there 
are a few simple causes which seem to 

* The authors of Histoire Litteraire de la 
France, t. i., can only find three writers of Gaul, 
no inconsiderable part of the Roman empire, men- 
tioned upon any authority: two of whom are now 
lost. In the preceding century the number was 
considerably greater 



account for the other. Knowledge will 
be spread over the surface of a nation in 
proportion to the facilities of education, 
to the free circulation of books, to the 
emoluments and distinctions which lit- 
erary attainments are found to produce, 
and still more to the reward which they 
meet in the general respect and applause 
of society. This cheering incitement, 
the genial sunshine of approbation, has 
at all times promoted the cultivation of 
literature in small republics rather than 
large empires, and in cities compared 
with the country. If these are the 
sources which nourish literature, we 
should naturally expect that they must 
have become scanty or dry when learn- 
ing languishes or expires. Accordingly, 
in the later ages of the Roman empire, a 
general indifference towards the cultiva- 
tion of letters became the characteristic 
of its inhabitants. Laws were indeed 
enacted by Constantine, Julian, Theodo- 
sius, and other emperors, for the encour- 
agement of learned men and the promo- 
tion of hberal education. But these 
laws, which would not perhaps have 
been thought necessary in better times, 
were unavailing to counteract the leth- 
argy of ignorance in which even the na- 
tive citizens of the empire were content- 
ed to repose. This alienation of men 
from their national literature may doubt- 
less be imputed, in some measure, to its 
own demerits. A jargon of mystical phi- 
losophy, half fanaticism and half impos- 
ture, a barren and inflated eloquence, a 
frivolous philology, were not among 
those charms of wisdom by which man 
is to be diverted from pleasure or arous- 
ed from indolence. 

In this temper of the public mind, there 
was little probability that new composi- 
tions of excellence would be produced, 
and much doubt whether the old would 
be preserved. Since the invention of 
printing, the absolute extinction of any 
considerable work seems a danger too 
improbable for apprehension. The press 
pours forth in a few days a thousand vol- 
umes, which scattered, like seed in the 
air, over the republic of Europe, could 
hardly be destroyed without tlie extirpa- 
tion of its inhabitants. But in the times 
of antiquity, manuscripts were copied 
with cost, labour, and delay ; and if the 
diffusion of knowledge be measured by 
the multiphcation of books, no unfair 
standard, the most golden ages of ancient 
learning could never bear the least com- 
parison with the three last centuries. 
The destruction of a few libraries by ac- 
cidental fire, the desolation of a few prov- 



i'ART I.] 



STATE OF SOCIETY. 



453 



inces by unsparing and illiterate barba- 
rians, might annihilate every vestige of 
an author, or leave a few scattered 
copies, which, from the public indiffer- 
ence, there was no inducement to multi- 
ply, exposed to similar casualties in suc- 
ceeding times. 

We are warranted by good authorities 
to assign, as a collateral cause of this ir- 
retrievable revolution, the neglect of hea- 
then literature by the Christian church. 
I am not versed enough in ecclesiastical 
writers to estimate the degree of this 
neglect ; nor am I disposed to deny that 
the mischief was beyond recovery before 
the accession of Constantine. From the 
primitive ages, however, it seems that a 
dislike of pagan learning was pretty gen- 
eral among Christians. Many of the fa- 
thers undoubtedly were accomplished in 
liberal studies, and we are indebted to 
them for valuable fragments of authors 
whom we have lost. But the literary 
character of the church is not to be meas- 
ured by that of its more illustrious lead- 
ers. Proscribed and persecuted, the 
early Christians had not perhaps access 
to the public schools, nor inclination to 
studies which seemed, very excusably, 
uncongenial to the character of their pro- 
fession. Their prejudices, however, sur- 
vived the establishment of Christianity. 
The fourth council of Carthage, in 398, 
prohibited the reading of secular books 
by bishops. Jerome plainly condemns 
the study of them, except for pious ends. 
All physical science, especially, was held 
in avowed contempt, as inconsistent with 
revealed truths. Nor do there appear to 
have been any canons made in favour of 
learning, or any restriction on the ordi- 
nation of persons absolutely illiterate.* 
There was, indeed, abundance of what is 
called theological learning displayed in 
the controversies of the fourth and fifth 
centuries. And those who admire such 
disputations may consider the principal 
champions in them as contributing to the 
glory, or at least retarding the decline of 
literature. But I believe rather that po- 
lemical disputes will be found not only 
to corrupt the genuine spirit of religion, 
but to degrade and contract the faculties. 
What keenness and subtlety these may 
sometimes acquire by such exercise is 
more like that worldly shrewdness we 
see in men whose trade it is to outwit 



* Mosheim, Cent. 4. Tiraboschi endeavours to 
elevate higher the learning of the early Christians, 
t. ii., p. 328. Jortin, however, asserts that many 
of the bishops in tlie general councils of Ephesus 
and Chalcedon could not write their names. — Re- 
marks on Ecclesiast. Hist., vol. ii., p. 417. 



their neighbours, than the clear and calm 
discrimination of philosophy. However 
this may be, it cannot be doubted that 
the controversies agitated in the church 
during these two centuries must have di- 
verted studious minds from profane liter- 
ature, and narrowed more and more the 
circle of that knowledge which they were 
desirous to attain. 

The torient of irrational superstitions, 
which carried all before it in the fifth 
century, and the progress of ascetic en- 
thusiasm, had an influence still more de- 
cidedly inimical to learning. I cannot 
indeed conceive any state of society 
more adverse to the intellectual improve- 
ment of mankind, than one which admit- 
ted of no middle line between gross dis- 
soluteness and fanatical mortification. 
An equable tone of public morals, social 
and humane, verging neither to voluptu- 
ousness nor austerity, seems the most 
adapted to genius, or at least t,o letters, 
as it is to individual comfort and national 
prosperity. After the introduction of 
monkery and its unsocial theory of du- 
ties, the serious and reflecting part of 
mankind, on whom science most relies, 
were turned to habits which, in the most 
favourable view, could not quicken the 
intellectual energies; and it might be a 
difficult question, whether the cultivators 
and admirers of useful literature were 
less likely to be found among the profli- 
gate citizens of Rome and their barbarian 
conquerors, or the melancholy recluses 
of the wilderness. 

Such therefore was the state of learn- 
ing before the subversion of the Western 
Empire. And we may form some notion 
how little probability there was of its 
producing any excellent fruits, even if 
that revolution had never occurred, by 
considering what took place in Greece 
during the subsequent ages; where, al- 
though there was some attention shown 
to preserve the best monuments of anti- 
quity, and diligence in compiling from 
them, yet no one original writer of any 
superior merit arose, and learning, though 
plunged but for a short period into mere 
darkness, may be said to have languished 
in a middle region of twilight for the 
greater part of a thousand years. 

But not to delay ourselves in this spec- 
ulation, the final settlement of barbarous 
nations in Gaul, Spain, and Italy consum- 
mated the ruin of literature. Their first 
irruptions were uniformly attended with 
devastation ; and if some of the Gothic 
kings, after their establishment, proved 
huinane and civilized sovereigns, yet the 
nation gloried in its sriginal rudeness, 



454 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX, 



and viewed with no unreasonable disdain 
arts which had neither preserved their 
cultivators from corruption, nor raised 
them from servitude. Theodoric, the 
most famous of the Ostrogoth kings in 
Italy, could not write his name, and is 
said to have restrained his countrymen 
from attending those schools of learning, 
by which he, or rather perhaps his min- 
ister Cassiodorus, endeavoured to re- 
vive the studies of his Italian subjects. 
Scarcely one of the barbarians, so long 
as they continued unconfused with the 
native inhabitants, acquired the slightest 
tincture of letters ; and the praise of 
equal ignorance was soon aspired to and 
attained by the entire mass of the Roman 
laity. They, however, could hardly have 
divested themselves so completely of all 
acquaintance with even the elements of 
learning, if the language in which books 
were written had not ceased to be their 
natural dialect. This remarkable change 
in the speech of France, Spain, and Italy, 
is most intimately connected with the 
extinction of learning ; and there is 
enough of obscurity, as well as of inter- 
est, in the subject, to deserve some dis- 
cussion. 

It is obvious, on the most cursory 
Corruption of view of the French and Span- 
the Latin Ian- ish languages, that they, as 
e^^s'^- -yygu as j^jje Italian, are derived 

from one common source, the Latin. 
That must therefore have been at some 
period, and certainly not since the estab- 
lishment of the barbarous nations in 
Spain and Gaul, substituted in ordinary 
use for the original dialects of those 
countries, which are generally supposed 
to have been Celtic, not essentially dif- 
fering from that which is spoken in 
Wales and Ireland. Rome, says Augus- 
tin, imposed not only her yoke, but her 
language, upon conquered nations. The 
success of such an attempt is indeed 
very remarkable. Though it is the natu- 
ral effect of conquest, or even of com- 
mercial intercourse, to ingraft fresh 
words and foreign idioms on the stock 
of the original language, yet the entire 
disuse of the latter, and adoption of one 
radically different, scarcely takes place 
in the lapse of a far longer period than 
that of the Roman dominion in Gaul. 
Thus, in part of Britany, the people 
speak a language which has perhaps 
sustained no essential alteration from 
the revolution of two thousand years ; 
and we know how steadily another Cel- 
tic dialect has kept its ground in Wales, 
notwithstanding English laws and gov- 
ernment, and the long line of contiguous 



frontier, which brings the natives of that 
principality into contact with English- 
men. Nor did the Romans ever estab- 
lish their language, I know not whether 
they wished to do so, in this island, as 
we perceive by that stubborn British 
tongue which has survived two con- 
quests.* 

In Gaul and in Spain, however, they 
did succeed, as the present state of the 
French and peninsular languages renders 
undeniable, though by gradual changes, 
and not, as the Benedictine authors of 
the Histoire Litteraire de la France 
seem to imagine, by a sudden and arbi- 
trary innovation.! This is neither pos- 
sible in itself, nor agreeable to the testi- 
mony of Ireneeus, bishop of Lyons, at 
the end of the second century, who la- 
ments the necessity of learning Celtic. J 
But although the inhabitants of these 
provinces came at length to make use of 
Latin so completely as their mother- 
tongue, that few vestiges of their origi- 
nal Celtic could perhaps be discovered in 
their common speech, it does not follow 
that they spoke with the pure pronuncia- 
tion of Italians, far less with that confor- 
mity to the written sounds, which we as- 
sume to be essential to the expression 
of Latin words. 

It appears to be taken for granted that 
the Romans pronounced their Ancient Lat- 
language as we do at present, in pronunci 
so far at least as the enuncia- *"*"'• 
tion of all the consonants, however we 
may admit our deviations from the clas- 
sical standard in propriety of sounds 
and in measure of time. Yet the exam- 
pie of our own language and of the French 
might show us that orthography may be- 
come a very inadequate representative 



* Gibbon roundly asserts, " that the language 
of Virgil and Cicero, though with some inevita- 
ble mixture of corruption, was so universally 
adopted in Africa, Spain, Gaul, Great Britain, and 
Pannonia, that the faint traces of the Punic or Cel- 
tic idioms were preserved only in the mountains 
or among the peasants." — Decline and Fall, vol. i., 
p. 60 (8vo. edit). For Britain he quotes Tacitus'a 
Life of Agricola as his voucher. But the only 
passage in this work that gives the least colour to 
Gibbon's assertion, is one in which Agricola is said 
to have encouraged the children of British chief- 
tains to acquire a taste for liberal studies, and to 
have succeeded so much by judicious commenda- 
tion of their abilities, ut qui niodo linguam Ro- 
manam abnuebant, eloquentiam concupiscerent (c. 
21). This, it is sufficiently obvious, is very differ- 
ent from the national adoption of Latin as a moth- 
er-tongue. 

+ T. vii., preface. 

i It appears by a passage quoted from the digest 
by M. Bonamy, Mem. de I'Acad. des Inscriptions, 
t. xxiv., p. 589, that Celtic was spoken in Gaul, or 
at least parts of it, as well as Punic in Africa. 



Part I.] 



STATE OF SOCIETY. 



455 



of pronunciation. It is indeed capable 
of proof, that in the purest ages of Latin- 
ity, some variation existed between these 
two. Those numerous clianges in spell- 
ing which distinguish the same words 
in the poetry of Ennius and of Virgil are 
best explained by the supposition of 
their being accommodated to the current 
pronunciation. Harsh combinations of 
letters, softened down through delicacy 
of ear or rapidity of utterance, gradual- 
ly lost their place in the written laur 
guage. Tims exfregil and adrogavit as- 
sumed a form representing their more 
liquid sound; and auctor was latterly 
spelled autor, which has been followed in 
French and Italian. Autor was probably 
60 pronounced at all times ; and the or- 
thography was afterward corrected or 
corrupted, which ever we please to say, 
according to the sound. We have the 
best authority to assert, that the final m 
was very faintly pronounced, rather, it 
seems, as a rest and short interval between 
two syllables, than an articulate letter ; 
nor indeed can we conceive upon what 
other ground it was subject to elision be- 
fore a vowel in verse ; since we cannot 
suppose that the nice ears of Rome 
would have submitted to a capricious 
rule of poetry, for which Greece pre- 
sented no analogy.* 

A decisive proof, in my opinion, of the 
deviation which took place, through the 
rapidity of ordinary elocution, from the 
strict laws of enunciation, may be found 
in the metre of Terence. His verses, 
which are absolutely refractory to the 
common laws of prosody, may be readi- 
ly scanned by the application of this 
principle. Thus, in the first act of the 
Heautontimorumenos, a part selected at 
random, I have found, I. Vowels con- 
tracted or dropped, so as to shorten the 
word by a syllable ; in rei, via, diutius, 
ei, solius, earn, unius, suara, divitias, scnex, 
voluptatem, illius, semel ; II. The pro- 
celeusmatic foot, or four short syllables, 
instead of the dactyl; seen, i., v. 59, 73, 
76, 88, 109; seen, ii., v. 36; III. The 
elision of s in words ending with us, or 
IS short, and sometimes even of tlie 
whole syllable, before the next word be- 
ginning with a vowel ; in seen, i., v. 30, 
81,98,101,116,119; seen, ii., v. 28. IV. 

* Atque eadein ilia litera, quoties ultima est, et 
vocalein verbi sequentis ita contingit, ut in earn 
. traiisire possit, etiam si scribitur, tamen parum ex- 
priinitur, ut Multum ilU, et Qtianlum erat ; adeo ut 
pene cujusdam novae literae sonum reddat. Neque 
enun exiniitur, sed obscuratur, et tantum aliqun 
inter duos vocales velut nota est, ne ipsse coeaut. — 
Quinlilian, Institut., 1. is., c. 4, p. 585, edit. Cap- 
peronier. 



The first syllable of ille is repeatedly 
shortened, and indeed nothing is more 
usual in Terence than this license ; 
whence we may collect how ready this 
word was for abbreviation into the 
French and Italian articles. V. The last 
letter of apiid is cut off, seen, i., v. 120, 
and seen, ii., v. 8. VI. Hodie is used as 
a pyrrhichius, in seen, ii., v. 11. VII. 
Lastly, there is a clear instance of a 
short syllable, the antepenultimate of 
impulcrim, lengthened on account of the 
accent, at the 113th verse of the first 
scene. 

These licenses are in all probability 
chiefly colloquial, and would not us corrup 
have been adopted in public bar- tionbyUie 
angues, to which the precepts P°l"''3'=^> 
of rhetorical writers commonly relate. 
But if the more elegant language of the 
Romans, since such we must suppose to 
have been copied by Terence for his 
higher characters, differed so much in or- 
dinary discourse from their orthography, 
it is probable that the vulgar went into 
much greater deviations. The popular 
pronunciation errs generally, we might 
say perhaps invariably, by abbreviation, 
of words, and by liquefying consonants, 
as is natural to the rapidity of colloquial 
speech.* It is by their knowledge of or- 
thography and etymology that the more 
educated part of the community are pre- 
served from these corrupt modes of pro- 
nunciation. There is always, therefore, a 
standard by which common speech may 
be rectified ; and in proportion to the dif- 
fusion of knowledge and politeness, the 
deviations from it will be more slight and 
gradual. But in distant prov- andthepro- 
inces, and especially where the vinciais. 
language itself is but of recent introduc- 
tion, many more changes may be ex- 
pected to occur. Even in France and 
England, there are provincial dialects, 
which, if written with all their anomalies 
of pronunciation as well as idiom, would 
seem strangely out of unison with the 
regular language ; and in Italy, as is well 

* The following passage of Quintilian is an ev- 
idence both of the omission of harsh or superflu- 
ous letters by the best speakers, and of the cor- 
rupt abbreviation usual with the worst. Dilucida 
vero erit pronunciatio primuni, si verba tota exe- 
gerit, quorum parsdevoran, p^rs destitui solet, pie- 
risque extremas syllabas non proferentibus, dum 
priorum sono indulgent. Ut est aulem necessaria 
verborum explanatio, ita omnes computare et velut 
adnumerare literas, molestum et odiosum. — Nam 
et vocales frequentissiniS coeunt, et consonantium 
qusedam insequente vocali dissiuuilantur ; utri- 
usque exeinpluin posuimus ; Multum ille et terris. 
Vitatur etiain diiriorum inter se congressus, unde 
pellcxit et collcgit, ni quaj alio loco dicta sunt, 1. ii., 
c. 3, p. 690. 



456 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



kno\vn, the varieties of dialect are still 
more striking. Now in an advancing 
state of society, and especially with 
such a vigorous pohiical circulation as 
we experience in England, language will 
constantly approximate to uniformity, as 
provincial expressions are more and 
more rejected for incorrectness or inele- 
gance. But where literature is on the 
decline, and public misfortunes contract 
the circle of those who are solicitous 
about refinement, as in the last ages of 
the Roman empire, there will be no 
longer any definite standard of living 
speech, nor any general desire to con- 
form to it, if one could be found ; and 
thus the vicious corruptions of the vulgar 
will entirely predominate. The niceties 
of ancient idiom will be totally lost ; 
while new idioms will be formed out of 
violations of grammar sanctioned by 
usage, which, among a civilized people, 
would have been proscribed at their ap- 
pearance. 

Such appears to have been the prog- 
ress of corruption in the Latin language. 
The adoption of words from the Teu- 
tonic dialects of the barbarians, which 
took place very freely, would not of it- 
self have destroyed the character of that 
language, though it sullied its purity. The 
worst law Latin of the middle ages is 
still Latin, if its barbarous terms have 
been bent to the regular inflections. It is 
possible, on the other hand, to write 
whole pages of Italian, wherein every 
word shall be of unequivocal Latin deri- 
vation, though the character and person- 
ality, if I m?y so say, of the language be 
entirely dissimilar. But, as I conceive, 
the loss of literature took away the only 
check upon arbitrary pronunciation and 
upon erroneous grammar. Each people 
innovated through caprice, imitation of 
their ne:^]ibonrs, or some of those inde- 
scribable causes which dispose the or- 
gans of difTerent nations to difi^jrcnt 
sounds. The French melted down the 
middle consonants ; the Italians omitted 
the final. Corniplions arising out of ig- 
norance were mingled wi;h those of pro- 
nunciation. It wouLl have been marvel- 
lous if illiterate and semi-b;irbarous pro- 
vincials had prccervs 1 that delicate pre- 
cision in usip.g the inilections of te-.iocs, 
which our best scholars d') not clearly 
attain. The common speech of any peo- 
ple whose language is highly complicated 
will be full of sw'ecisms. The French 
inflections arc not comparable in number 
or delicacy to the Latin, and yet the vul- 
gar confuse their most ordinary forms. 

But, in all probabihty, the variation of 



these derivative languages from popular 
Latin has been considerably less than it 
appears. In the purest ages of Latinity, 
the citizens of Rome itself made use of 
many terms which we deem barbarous, 
and of many idioms which we should re- 
ject as modern. That highly complica- 
ted grammar, which the best writers em- 
ployed, was too elliptical and obscure, too 
deficient in the connecting parts of 
speech, for general use. We cannot in- 
deed ascertain in what degree the vulgar 
Latin differed from that of Cicero or 
Seneca. It would be highly absurd to 
imagine, as some are said to have done, 
that modern Italian was spoken at Rome 
under Augustus.* But I believe it may 
be asserted, not only that mush the 
greater part of those words in the pres- 
ent language of Italy, which strike us as 
incapable of a Latin etymology, are in 
fact derived from those current in the 
Augustan Age, but that very many 
phrases which offended nicer ears pre- 
vailed in the same vernacular speech, 
and have passed from thence into the 
modern French and Italian. Such, for 
example, was the frequent use of prepo- 
sitions, to indicate a relation between 
two parts of a sentence which a classical 
writer would have made to depend on 
mere inflection. f 

From the difficulty of retaining a right 
discrimination of tense seems to have 
proceeded the active auxiliary verb. It 
13 possible that this was borrowed from 
the Teutonic languages of the barbarians, 
and accommodated both by them and by 
the natives to words of Latin origin. 
The passive auxiliiiry is obtained by a 
very ready resolution of any tense in 
that mood, and has not been altogether 
dispensed with even in Greek, while in 
Latin it is used much more frequently. 
It is not quite so easy to perceive the 
propriety of the active habeo or teneo, 
one or both of which all modern lan- 
guages have adopted as their auxiliaries 

* Tiraboschi (Stovir. dell. Lett. Ital., t. lii., pref- 
ace, p. V.) imputes this pavailox to Ber.ibo and 
Gu.'uirio ; but I can hrrdly believe that either of 
them could inointaiii it in a liter.-^l sense. 

I M. Bonaii V, in an essay printed in Mem. de 
I'Acadcmie des Inscriptions, t. xxiv., has produced 
Severn' proofs of ihis from the clnssical wiiters on 
a^^riculture and olher avU-, rhough sotne of Lis in- 
stances are not in point, as any schoolboy would 
have told liim. This essay, wjii.-'h, by some acci- 
dent, had escaped ray notice till I hr.d ncavly fin- 
ished the observations in my te.\t, contains, I ihink, 
the best view that I have seen of the protess oi 
transition by which Latm was changed into French 
and Italian. Add, however, the preface to Tira- 
boschi's third vnhmie, and the thirty-second disses 
talion of Muratori. 



Part I.] 



STATE OF SOCIETY. 



457 



in conjugating the verb. But in some 
instances this analysis is not improper ; 
and it may be supposed that nations, 
careless of etymology or correctness, 
applied the same verb by a rude analogy 
to cases Avhere it ought not strictly to 
have been employed.* 

Next to the changes founded on pro- 
nunciation, and to the substitution of 
auxiliary verbs for inflections, the usage 
of the definite and indefinite articles in 
nouns appears the most considerable step 
in the transmutation of Latin into its de- 
rivative languages. None but Latin, I 
believe, has ever wanted this part of 
speech; and the defect to which custom 
reconciled the Romans, would be an in- 
superable stumbling-block to nations who 
were to translate their original idiom into 
that language. A coarse expedient of 
applying unus ipse or ille to the purposes 
of an article might perhaps be no unfre- 
quent vulsarism of the provincials ; and 
after the Teutonic tribes brought in their 
own grammar, it was natural that a cor- 
ruption should become universal, which 
in fact supplied a real and essential defi- 
ciency. 

That the quantity of Latin syllables is 

neglected, or rather lost in mod- 
Pronuncia- " • t- „ * u 

tion no ^m pronunciation, seems to be 

longer regu- generally admitted. Whether 
cualiuty iudeed the ancient Romans, in 
their ordinary speaking, distin- 
guished the measure of syllables with 
such uniform musical accuracy as we 
imagine, giving a certain time to those 
termed long, and exactly half that dura- 
tion to the short, might perhaps be ques- 
tioned ; though this was probably done, 
or attempted to be done, by every reader 
of poetry. Certainly, however, the lavvs 
of quantity were forgotten, and an ac- 
centual pronunciation came to predomi- 
nate, before Latin had ceased to be a liv- 
ing language. A Christian writer, named 
Commodianus, who lived before the end 
of the third century, according to some, 
or, as others think, in the reign of Con- 
stantine, has left us a philological curios- 
ity, in a series of attacks on the pagan 
superstitions, composed in what are 
meant to be verses, regulated by accent 
instead of quantity, exactly as we read 
Virgil at present. f 

♦ See Lanzi, Sa^jio della Lingua Etrusca, t. i., 
c. 431 ; Mem. de I'Acad. des Inscrip., t. xxiv., p. 
632. 

+ No description can give so adequate a notion 
of this extraordinary performance as a short speci- 
men. Take the introductory lines ; which really, 
prejudices of education apart, are by no means in- 
narmonious ; — 



It is not improbable that Commodianus 
may have written in Africa, the province 
in which, more than any, the purity of 
Latin was debased. At the end of the 
fourth century, St. Augustin assailed his 
old enemies, the Donatists, with nearly 
the same arms that Commodianus had 
wielded against heathenism. But as the 
refined and various music of hexameters 
was unlikely to be relished by the vulgar, 
he prudently adopted a different meas- 
ure.* All the nations of Europe seem to 
love the trochaic verse ; it was frequent 
on the Greek and Roman stage ; it is 
more common than any other in the pop- 
ular poetry of modern languages. This 
proceeds from its simplicity, its liveli- 
ness, and its ready accommodation to 
dancing and music. In St. Austin's 
poem, he united to a trochaic measure 
the novel attraction of rhyme. 

As Africa must have lost all regard to 
the rules of measure in the fourth centu- 
ry, so it appears that Gaul was not more 
correct in the two next ages. A poem 
addressed by Auspicius, bishop of Toul, 
to Count Arbogastes, of earher date 
probably than the invasion of Clovis, 



Prsfatio nostra viam erranti demonstrat, 

Respectumque bonum.cum venerit sceculimeta, 

jEternum tieri, quod discredunt inscia corda. 

Ego similiter erravi tempore muito, 

Fana prosequendo, parentibus insciis ipsis. 

Abstuli me tandem mde, legendo de lege. 

Testificor Dominum, doleo, proh ! civica turba 

Inscia quod perdit, pergens deos quaerere vanos. 

Ob ea perdoctus ignores instruo verum. 
Commodianus however did not keep up to this ex- 
cellence in every pan. Some of his lines are not 
reducible to any pronunciation, without the sum- 
mary rules of Procrustes ; as for instance — 

Paratus ad epulas, et refugiscere prascepta; or, 
Capillos inficitis, oculos fuligine relinitis. 

It must be owned that his text is exceedingly 
corrupt, and I should not despair of seeing a truly 
critical editor improve his lines into unblemished 
hexameters. Till this time arrives, however, we 
must consider him either as utterly ignorant of 
metrical distinctions, or at least as aware that the 
populace whom he addressed did not observe them 
in speaking. Commodianus is published by Dawes 
at the end of his edition of Minucius Felix. Some 
specimens are quoted in Harris's Philological In- 
quiries. 

* Archseologia, vol. xiv., p. 188. The following 
are the first lines : — 

Abundantia peccatorum solet fratres conturbare ; 
Propter hoc Uominus noster voluit nos praemonere, 
Comparans regnum coslorum reticule misso ih 

mare, 
Congreganti multos pisces, omne genus hinc et 

inde, 
Quos cum traxissent ad littus, tunc coeperunt sep 

arare, 
Bonos in vasa raiserunt, reliquos malos in mare. 

This trash seems below the level of Augustin • 
but it could not have been much later than his 



458 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



is written with no regard to quantity.* 
The bishop by whom this was composed 
is mentioned by his contemporaries as a 
man of learning. Probably he did not 
choose to perplex the barbarian to whom 
he was writing (for Arbogastes is plainly 
a barbarous name) by legitimate Roman 
metre. In the next century,, Gregory of 
Tours informs us that Chilperic attempt- 
ed to write Latin verses ; but the lines 
could not be reconciled to any division 
of feet ; his ignorance having confounded 
long and short syllables together.! Now 
Chilperic must have learned to speak 
Latin like other kings of the Franks, and 
was a smatterer in several kinds of litera- 
ture. If Chilperic therefore was not 
master of these distinctions, we may con- 
clude that the bishops and other Romans 
with whom he conversed did not observe 
them ; and that his blunders in versifica- 
tion arose from ignorance of rules, which, 
however fit to be preserved in poetry, 
were entirely obsolete in the living Latin 
of his age. Indeed, the frequency of false 
quantities in the poets even of the fifth, 
but much more of the sixth century, is 
palpable. Fortunatus is quite full of 
them. This seems a decisive proof that 
the ancient pronunciation was lost. Avi- 
tus tells us, even at the beginning of the 
same age, that few preserved the proper 
measure of syllables in singing. Yet he 
was Bishop of Vienne, where a purer 
pronunciation might be expected than in 
the remoter parts of Gaul.f 

Defective, however, as it had become 
Change of in respect of pronunciation, Lat- 
Laiin into in was still spoken in France 
Romance, dm-i^g t^g gj^th and seventh cen- 
turies. We have compositions of that 
time, intended for the people, in gram- 
matical language. A song is still extant, 
in rhyme and loose accentual measure, 
written upon a victory of Clotaire II. 
over the Saxons in 622, and obviously in- 
tended for circulation among the people.^ 

* Recueil des Historiens, t. i., p. 815 ; it begins 
in the following manner : — 

Praecelso expectabili bis Arbogasto comiti 

Auspicius, qui diligo, salutem dico plurimam. 

Magnas ccelesti Domino rependo corde gratias 

Quod te Tullensi proximo magnum in urbe vidi- 
mus. 

Multis me tuis artibus laetificabas antea, 

Sed nunc fecisti maximo me exultare gaudio. 

t Chilpericus rex .... confecit duos libros, quo- 
rum versiculi debiles nullis pedihus sulisistere 
possunt : in quibus, dum non intelligebat, pro lon- 
gis syllabas breves posuit, et pro brevibus longas 
statuebat, 1. vi., c. 46. 

t Mem. de I'Acad^mie des Inscriptions, t. xvii. 
Hist. Litteraire de la France, t. ii., p. 28. 

<^ One stanza of this song will suffice to show 
that the Latin language was yet unchanged. — 



Fortunatus says, m his life of St. Aubin 
of Angers, that he should take care not 
to use any expression uninteUigible to 
the people.* Baudemind, in the middle 
of the seventh century, declares, in his 
life of St. Amand, that he writes in a rus- 
tic and vulgar style, that the reader may 
be excited to imitation. f Not that these 
legends were actually perused by the 
populace, for the very art of reading was 
confined to a few. But they Avere read 
publicly in the churches, and probably 
with a pronunciation accommodated to 
the corruptions of ordinary language. 
Still the Latin syntax must have been 
tolerably understood; and we may there- 
fore say that Latin had not ceased to be 
a living language in Gaul during the sev- 
enth century. Faults indeed against the 
rules of grammar, as well as unusual 
idioms, perpetually occur in the best 
writers of the Merovingian period, such 
as Gregory of Tours ; while charters 
drawn up by less expert scholars deviate 
much farther from purity. | 

The corrupt provincial idiom became 
gradually more and more dissimilar to 
grammatical Latin ; and the lingua Ro- 
mana rustica, as the vulgar -patois (to 
borrow a word that I cannot well trans- 
late) had been called, acquired a distinct 
character as a new language in the eighth 
century.^ Latin orthography, which had 
been hitherto pretty well maintained in 
books, though not always in charters, 
gave way to a new spelling, conformably 
to the current pronunciation. Thus we 
find lui, for illius, in the Formularies of 
Marculfus ; and Tu lo juva in a liturgy 
of Charlemagne's age, for Tu ilium juva. 
When this barrier was once broken 
down, such a deluge of innovation pour- 
ed in, that all the characteristics of Lat- 
in were effaced in writing as well as 
speaking, and the existence of a new 
language became undeniable. In a coun- 
cil held at Tours in 813, the bishops are 
ordered to have certain homilies of the 



De Clotario est canere rege Francorum, 
Qui ivi pugnare cum gente Saxonum, 
Quam graviter proveni.sset missis Saxonum, 
Si non fuisset inclitus Faro de gente Burgundi- 

onum. 
* Proecavendum est, ne ad aures populi minus 

aliquid intelligibile proferalur. — Mem. de I'Acad., t. 

xvn., p. 712. 
t Rustico et plebeio sermone propter exemplum 

et imitationein, id. ibid. 

X Hist. Litteraire de la France, t. iii., p. 5. Mem. 

de I'Academie, t. xxiv., p. 617 Nouveau Traite 

de Diplomatique, t. iv., p. 485. 

^ Hist. Litteraire de la France, t. vii., p. 12. 

The editors say that it is mentioned by name even 

in the seventh century, which is very natural, as 

the corruption of Latin had then become striking. 



Part I.] 



STATE OF SOCIETY. 



450 



fathers translated into the rustic Roman, 
as well as the German tongue.* After 
this it is unnecessary to multiply proofs 
of the change which Latin had under- 
gone. 

In Italy, the progressive corruptions of 
Itscorrup- ^^^ Latin language were anal- 
lion ia ogous to those which occurred 
Jiaiy. j,j Frai^ce, though we do not find 
in writings any unequivocal specimens 
of a new formation at so early a period. 
But the old inscriptions, even of the 
fourth and fifth centuries, are full of sol- 
ecisms and corrupt orthography. In le- 
gal instruments under the Lombard kings, 
the Latin inflections are indeed used, but 
with so little regard to propriety that it is 
obvious the writers had not the slightest 
tincture of grammatical knowledge. This 
observation extends to a very large pro- 
portion of such documents down to the 
twelfth century, and is as applicable to 
France and Spain as it is to Italy. In 
these charters the pecuhar characteris- 
tics of Italian orthography and grammar 
frequently appear. Tluis we find, in the 
eighth century, diveatis for debeatis, da 
for de in the ablative, avendi for habendi, 
daj'a for dabat, cedo a deo, and ad eccle- 
sia, among many similar corruptions.! 
Latin was so changed, it is said by a 
writer of Charlemagne's age, that scarce- 
ly any part of it was popularly known. 
Italy indeed had suffered more than 
France itself by invasion, and was re- 
duced to a lower state of barbarism, 
though probably from the greater dis- 
tinctness of pronunciation habitual to the 
Italians, they lost less of their original 
language than the French. I do not 
find, however, in the writers who have 
treated this subject, any express evi- 
dence of a vulgar language distinct from 
Latin earlier than the close of the tenth 
century, when it is said in the epitaph of 
Pope Gregory v., who died in 999, that 
he instructed the people in three cj^alects ; 
— the Prankish or German, the vulgar, 
and the Latin. | 

When Latin had thus ceased to be a 
Ignorance living language, the whole treas- 
conse- ury of knowledge was locked up 

?he dis°" ^^""^ ^^^ ^y^^ "f ^^^® people, 
use of The few who might have im- 
Latin. bibed a taste for literature, if 

* Mem. de I'Acad. des Insc, t. xvii. See two 
Memoirs in this volame by Du Clos and Le Boeuf, 
especially the latter, as well as that already men- 
tioned in t. x.xiv,, p. 582, by M. Bonamy. 

t Muratori, Dissert, i. and xliii. 

^ Usus Francisca, vulgari, et voce Latina. 
Instituit popnlos eloquio triplici. 

Fontanini dell' Eloquenza Italiana, p. 15. Mu- 
ratori, Dissert, xxxii. 



books had been accessible to them, were 
reduced to abandon pursuits that could 
only be cultivated through a kind of ed- 
ucation not easily within their reach. 
Schools, confined to cathedrals and mon- 
asteries, and exclusively designed for the 
purposes of religion, afforded no encour- 
agement or opportunities to the laity.* 
The worst eflect was, that, as the newly- 
formed languages were hardly made use 
of in writing, Latin being still preserved 
in all legal instruments and public corre- 
spondence, the very use of letters, as 
well as of books, was forgotten. For 
many centuries, to sum up the account 
of ignorance in a word, it was rare for a 
layman, of whatever rank, to know how- 
to sign his name.f Their charters, till 
the use of seals became general, were 
subscribed with the mark of the cross. 
Still more extraordinary it was to find 
one who had any tincture of learning. 
Even admitting every indistinct com- 
mendation of a monkish biographer (with 
whom a knowledge of church-music 
would pass for literature), J we could 
make out a very short list of scholars. 
None certainly were more distinguished 
as such than Charlemagne and Alfred. 
But the former, unless we reject a very 
plain testimony, was incapable of wri- 
ting ;'5> and Alfred found difficulty in ma- 
king a translation from the pastoral in- 
struction of St. Gregory, on account of 
his imperfect knowledge of Latin. || 

Whatever mention, therefore, we find 
of learning and the learned during these 



* Histoire Litteraire de la France, t. vi., p. 20. 
Muratori, Dissert, xliii. 

t Nouveau Traite de Diplomatique, t. ii., p. 419. 
This became, the editors say, much less unusual 
about the end of the thirteenth century ; a pretty 
late period ! A few signatures to deeds appear in 
the fourteenth century ; in the next they are more 
frequent. — Ibid. The emperor Frederick Barba- 
rossa could not read (.Struvius, Corpus Hist. Ger- 
man., t. i., p. 377), nor John, king of Bohemia, in the 
middle of the fourteenth century (Sismondi, t. v., 
p. 205), nor Philip the Hardy, liing of France, al- 
though the son of St. Louis.— (Velly, t. vi., p. 
426.) 

I Louis IV., king of France, laughing at Fulk, 
count of Anjou, who sang anthems among the 
choristers at Tours, received the following pithy 
epistle from his learned vassal : Noveritis, domine, 
quod rex illiteratus est asinus coronatus. Gesta 
Comitum Andegavensium. In the same book, 
Geoffrey, father of our Henry II., is said to be op- 
time literatus; which perhaps imports little mora 
learning than his ancestor Fulk possessed. 

{) The passage in Eginhard which has occa- 
sioned so much dispute speaks for itself: Tenta- 
bat et scribere, tabulasque et codiciUos ad hoc in 
lecticula sub cervicalibus circumferre solebat, ut, 
cum vacuum tempus esset, manum efligiandis Ut- 
eris assuefaceret ; sed parum prospere successit 
labor praiposterus ac seromchoatus. 

II Spelman, Vit. Alfred., Append. 



460 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



dark nges. must be understood to relate 
only to such as were within the pale of 
clergy, which indeed was pretty ex- 
tensive, and comprehended many who 
did not exercise the offices of religious 
ministry. But even the clergy were, 
for a long period, not very materially su- 
perior, as a body, to the uninstructed la- 
ity. An inconceivable cloud of igno- 
rance overspread the whole face of the 
church, hardly broken by a few glimmer- 
ing lights, who owe almost the whole of 
their distinction to the surrounding dark- 
ness. In the sixth century, the best wri- 
ters in Latin were scarcely read ;* and 
perhaps from the middle of this age to 
the eleventh, there was, in a general 
view of literature, little difference to be 
discerned. If we look more accurately, 
there will appear certain gradual shades 
of twilight on each side of the greatest 
obscurity. France reached her lowest 
point at the beginning of the eighth cen- 
tury ; but England was at that time more 
respectable, and did not fall into complete 
degradation till the middle of the ninth. 
There could be nothing more deplorable 
than the state of letters in Italy and in 
England during the succeeding century ; 
but France seems to have been uniform- 
ly, though very slowly, progressive from 
the time of Charlemagne. f 

Of this prevailing ignorance it is easy J 
to produce abundant testimony. Con- 
tracts were made verbally, for want of 
notaries capable of drawing up charters ; 
and these, when written, were frequently 
barbarous and ungrammatical to an in- 
credible degree. For some considerable 
intervals scarcely any monument of lit- 
erature has been preserved, except a few 
jejune chronicles, the vilest legends of 
saints, or verses equally destitute of spirit 
and metre. In almost every council, the 
ignorance of the clergy forms a subject 
for reproach. It is asserted, by one held 
in 992, that scarcely a single person was 
to be found in Rome itself who knew the 
first elements of letters. | Not one priest 

* Hist. Litteraire dela France, t. iii., p. 5. 

t These four dark centuries, the eighth, ninth, 
tenth, and eleventh, occupy five large quarto vol- 
umes of the Literary History of France, by the 
fathers of St. Maur. But the most useful part 
will be found in the general view at the com- 
mencement of each volume ; the remainder is ta- 
ken up with biographies, into which the reader 
may dive at random, and sometimes bring up a cu- 
rious fact. 

Tiraboschi, Storia della Letteratura, t. iii., and 
Muralon's forty-third Dissertation, are good au- 
thorities for the condition of letters in Italy ; but I 
cannot easily give references to all the books 
which I have consulted. 

t Tiraboschi, t. iii., p. 198. 



of a thousand in Spain^ about the age of 
Charlemagne, could address a common 
letter of salutation to another.* lu Eng- 
land, Alfred declares that he could not 
recollect a single priest south of the 
Thames (the most civilized part of Eng- 
land), at the time of his accession, who 
understood the ordinary prayers, or could 
translate Latin into his mother tongue. f 
Nor was this better in the time of Dun- 
stan, when, it is said, none of the clergy 
knew how to write or translate a Latin 
letter.! The homilies which they preach- 
ed were compiled for their use by some 
bishops, from former works of the same 
kind, or the writings of the fathers. 

This universal ignorance was render- 
ed unavoidable, among other Scarcity of \ 
causes, by the scarcity of books, ^ooks. 
which could only be procured at an im- 
mense price. From the conquest of Al- 
exandria by the Saracens at the begin- 
ning of the seventh century, when the 
Egyptian papyrus almost ceased to be 
imported into Europe, to the close of the 
tenth, about which time the art of ma- 
king paper from cotton rags seems to have 
been introduced, there were no materials 
for writing except parchment, a sub- 
stance too expensive to be readily spai^d 
for mere purposes of literature. § Hence 

* Mabillon, De Re Diplomatica, p. 55. 

t Spelman, Vit. Alfred., Append. The whole 
drift of Alfred's preface to this translation is to de- 
fend the expediency of rendering books into Eng- 
lish, on account of the general ignorance of Latin. 
The zeal which this excellent prince shows for lit- 
erature is delightful. Let us endeavour, he says, 
that all the English youth, especially the children 
of those who are freeborn, and can educate them, 
may learn to read English before they take to any 
employment. Afterward, such as please may be 
instructed in Latin. Before the Danish invasion 
indeed, he tells us, churches were well furnished 
with books; but the priests got little good from 
them, being written in a foreign language which 
they could not understand. 

% Mabillon, De Re Diplomatica, p. 55. Orderi- 
cus Vitalis, a more candid judge of our unfortu- 
nate ancestors than other contemporary annalists, 
says, that the English were, at the conquest, rude 
and almost illiterate, which he ascribes to the 
Danish invasion. — Du Chesne, Hi.st. Norm. Script., 
p. 518. However, Ingulfus tells us, that the libra- 
ry of Croyland contained above three hundred vol- 
umes, till the unfortunate lire that destroyed that 
abbey in 1091. — Gale, xv. Scriptores, t. i., 93. 
Such a library was very extraordinary in the elev- 
enth century, and could not have been equalled for 
some ages afterward. Ingulfus mentions at the 
same time a nadir, as he calls it, or planetarium, 
executed in various metals. This had been pre- 
sented to Abbot Turketul in the tenth century by a 
king of France, and was, I make no doubt, of Ara- 
bian, or perhaps Greek manufacture. 

{) Parchment was so scarce that none could be 
procured about 1120 for an illuminated copy of tho 
Bible. — Warton's Hist, of English Poetrj-, Dissert. 
II. I suppose the deficiency was of skins beautiful 



Paet I.] 



STATE OF SOCIETY. 



461 



an unfortunate practice gained ground, 
of erasing a manuscript in order to sub- 
stitute another on the same skin. This 
occasioned the loss of many ancient au- 
thors, who have made way for the le- 
gends of saints or other ecclesiastical 
rubbish. 

If we would listen to some literary 
Want of historians, we should believe 
eminent that the darkest ages contained 
men in lit- many individuals, not only dis- 
eraiure. tiiiguished among their contem- 
poraries, but positively eminent for abil- 
ities and knowledge. A proneness to 
extol every monk, of whose production 
a few letters or a devotional treatise sur- 
vives, every bishop, of whom it is related 
that he composed homilies, runs through 
the laborious work of the Benedictins of 
St. Maur, the Literary History of France, 
and, in a less degree, is observable even 
in Tiraboschi, and in most books of this 
class. Bede, Alcuin, Hincmar, Raban, 
and a number of inferior names, become 
real giants of learning in their uncritical 
panegyrics. But one might justly say, 
that ignorance is the smallest defect of 
the writers of these dark ages. Several 
of them w^ere tolerably acquainted with 
books ; but that wherein they are uni- 
formly deficient is original argument or 
expression. Almost every one is a com- 
piler of scraps from the fathers, or from 
such semi-classical authors as Bocthius, 
Cassiodorus, or Martianus Capella.* In- 
deed I am not aware that there appeared 
more than two really considerable men 



enough for this purpose ; it cannot be meant that 
there was no parchment for legal instruments. 

Manuscripts written on papyrus, as may be sup- 
posed from the fragility of the material, as well as 
the difficulty of procuring it, are of extreme rarity. 
That in the British Museum, being a charter to a 
church at Ravenna in 572, is in every respect the 
most curious ; and indeed both Mahillon and Mu- 
ratori seem never to have seen any thing written 
on papyrus; though they trace its occasional use 
down to the eleventh or twelfth centuries.— Mabil- 
lon, De Re Diplomatica, 1. ii. Muratori, Antichita 
Italiane, Dissert, xliii , p. 602. But the authors of 
the Nouveau Traite de Diplomatique speak of sev- 
eral manuscripts on this material as extant in 
France and Italy.— T. i., p. 493. 

As to I he general scarcity and high price of books 
in the middle ages, Robertson (Introduction to Hist. 
Charles V., note x.) and Warton, in the above cited 
dissertation, not to quote authors less accessible, 
have collected some of the leading facts ; to whom 
I refer the reader. 

* Lest I should seem to have spoken too per- 
emptorily, I wish it to be understood that 1 pre- 
tend to hardly any direct acquaintance with these 
writers, and found my censure on the authority of 
others, chiefly indeed on the admissions of those 
•who are too disposed to fall into a strain of pane- 
gyric—See Histoire Litt6raire de la France,!, iv., 
p. 281, et alibi. 



in the republic of letters, from the sixth 
to the middle of the eleventh century; 
John, surnamed Scotus or Erigena, a na- 
tive of Ireland ; and Gerbert, who be- 
came pope by the name of Silvester II. l 
the first endowed with a bold and acute 
metaphysical genius : the second excel- 
lent, for the time when he lived, in math- 
ematical science and mechanical inven- 
tions.* 

If it be demanded by what cause it hap- 
pened that a few sparks of an- f, ^ ^ ^ 
cient learning survived through- ihcpreser- 
out this long winter, we can only vaUon of 
ascribe their preservation to the J-e^jgjon^^ 
establishment of Christianity. 
Religion alone made a bridge, as it were, 
across the chaos, and has linked the two 
periods of ancient and modern civiliza- 
tion. Without this connecting principle 
Europe might indeed have awakened to 
intellectual pursuits, and the genius of re- 
cent times needed not to be invigorated 
by the imitation of antiquity. But the 
memory of Greece and Rome would 
have been feebly preserved by tradition, 
and the monuments of those nations 
might have excited, on the return of civ- 
ilization, that vague sentiment of specu- 
lation and wonder with which men now 
contemplate Persepolis or the Pyramids. 
It is not, however, from religion simply 
that we have derived this advantage, but 
from religion as it was modified in the 
dark ages. Such is the complex recipro- 
cation of good and evil in the dispensa- 
tions of Providence, that we may assert, 
with only an apparent paradox, that, had 
religion been more pure, it would have 
been less permanent, and that Christian- 
ity has been preserved by means of its 
corruptions. The sole hope for literature 
depended on the Latin language ; and I 
do not see why that should not have 
been lost, if three circumstances in the 
prevailing religious system, all of which 
we are justly accustomed to disapprove, 
had not conspired to maintain it ; the 
papal supremacy, the monastic institu- 
tions, and the use of a Latin liturgy. 1. 
A continual intercourse was kept up in 
consequence of the first, between Rome 
and the several nations of Europe ; her 
laws were received by the bishops, her 
legates presided in councils ; so that a 



*• John Scotus, who, it is almost needless to say 
must not be confounded with the still more famous 
metaphysician Duns Scotus, lived under Charles 
the Bald, in the middle of the ninth century. Sil- 
vester II. dieii in 1003. Whether he first brought 
the Arabic numeration into Europe, as has been 
commonly said, seems uncertain ; it was at least 
not much practised for some centuries after his 
death. 



462 



EUROPE DURING THE MIDDLE AGES. 



[Chap, IX 



common language was as necessary in 
the church as it is at present in the diplo- 
matic relations of kingdoms. 2. Through- 
out the whole course of the middle ages, 
there was no learning, and very little reg- 
ularity of manners, among the parochial 
clergy. Almost every distinguished man 
was either the member of a chapter or 
of a convent. The monasteries were 
subjected to strict rules of discipline, and 
held out, at the worst, more opportuni- 
ties for study than the secular clergy pos- 
sessed, and fewer for worldly dissipa- 
tions. But their most important service 
was as secure repositories for books. 
All our manuscripts have been preserved 
in this manner, and could hardly have 
descended to us by any other channel; 
at least there were intervals when I do 
not conceive that any royal or private 
libraries existed. 3. Monasteries, how- 
ever, would probably have contributed 
very little towards the preservation of 
learning, if the Scriptures and the liturgy 
had been translated out of Latin when 
that language ceased to be inteUigible. 
Every rational principle of religious wor- 
ship called for such a change ; but it 
would have been made at the expense of 
posterity. One might presume, if such 
refined conjectures were consistent with 
historical caution, that the more learn- 
ed and sagacious ecclesiastics of those 
times, deploring the gradual corruption 
of the Latin tongue, and the danger of its 
absolute extinction, were induced to main- 
tain it as a sacred language, and the de- 
positary, as it were, of that truth and that 
science which would be lost in the bar- 
, barons dialects of the vulgar. But a sim- 
pler explanation is found in the radical 
dislike of innovation which is natural to 
I an established clergy. Nor did they want 
\ as good pretexts, on the ground of conve- 
nience, as are commonly alleged by the 
opponents of reform. They were habit- 
uated to the Latin words of the church- 
service, which had become, by this as- 
sociation, the readiest instruments of de- 
votion, and with the majesty of which 
the Romance jargon could bear no com- 
parison. Their musical chants were 
adapted to these sounds, and their hymns 
depended for metrical effect on the 
marked accents and powerful rhymes 
which the Latin language affords. The 
vulgate Latin of the Bible was still more 
venerable. It was like a copy of a lost 
original ; and a copy attested by one of 
the most eminent fathers, and by the gen- 
eral consent of the church. These are 
certainly no adequate excuses for keep- 
ing the people in ignorance ; and the 



gross corruption of the middle ages is in 
a great degree assignable to this policy. 
But learning, and consequently religion, 
have eventually derived from it the ut- 
most advantage. 

In the shadows of this universal igno- 
rance, a thousand superstitions, .supcrsu- 
like foul animals of night, were ''""s- 
propagated and nourished. It would be 
very unsatisfactory to exhibit a few spe- 
cnnens of this odious brood, when the 
real character of those times is only to 
be judged by their accumulated multi- 
tude. In every ag.e, it would be easy to 
select proofs of irrational superstition, 
which, separately considered, seem to 
degrade mankind from its level in the 
creation; and perhaps the contempora- 
ries of Swedenborg and Southcote have 
no right to look very contemptuously 
upon the fanaticism of their ancestors. 
There are many books from which a suf- 
ficient number of instances may be col- 
lected to show the absurdity and igno- 
rance of the middle ages in this respect. 
I shall only mention two, as affording 
more general evidence than any local or 
obscure superstition. In the tenth cen- 
tury, an opinion prevailed everywhere 
that the end of the world was approach- 
ing. Many charters begin with these 
words : " As the world is now drawing to 
its close." An army marching under the 
Emperor Otho I. was so terrified by an 
eclipse of the sun, which it conceived to 
announce this consummation, as to dis- 
perse hastily on all sides. As this notion 
seems to have been founded on some 
confused theory of the millennium, it nat- 
urally died away when the seasons pro- 
ceeded in the eleventh century with their 
usual regularity.* A far more remai'ka- 
ble and permanent superstition was the 
appeal to heaven in judicial controver- 
sies, whether through the means of com- 
bat or of ordeal. The principle of these 
was the same ; but in the former, it was 
mingled with feelings independent of re- 
ligion; the natural dictates of resentment 
in a brave man unjustly accused, and the 
sympathy of a warlike people with the 
display of skill and intrepidity. These, 
in course of time, almost obliterated the 
primary character of judicial combat, and 
ultimately changed it into the modern 
duel, in which assuredly there is no mix- 
ture of superstition.! But, in the various 



* Robertson, Introduction to Hist. Charles V., 
note 1.3. Schmidt, Hist, des Allemands, t. n., p. 
380. Hist. Litteraire de la France, t. vi. 

t Duelling, in the modern sense of the word, ex- 
clusive of casual frays and single combat during 
war, was unknown before the sixteenth century. 



Part I.] 



STATE OF SOCIETY. 



463 



tests of innocence which were called or- 
deals, this stood undisguised and unqual- 
ified. It is not necessary to describe 
Avhat is so well known ; the ceremonies 
of trial by handling hot iron, by plunging 
the arm into boihng fluids, by floating or 
sinking in cold water, or by swallowing 
a piece of consecrated bread. It is ob- 
servable that, as the interference of 
Heaven was relied upon as a matter of 
course, it seems to have been reckoned 
nearly indiff'erent, whether such a test was 
adopted as must, humanly considered, ab- 
solve all the guilt}', or one that must con- 
vict all the innocent. The ordeals of hot 
iron or water were, however, more com- 
monly used ; and it has been a perplex- 
ing question, by what dexterity these tre- 
mendous proofs were eluded. They seem 
at least to have placed the decision of 
all judicial controversies in the hands of 
the clergy, who must have known the 
secret, whatever that might be, of sat- 
isfying the spectators that an accused 
person had held a mass of burning iron 
with impunity. For several centuries this 
mode of investigation was in great re- 
pute, though not witliout opposition from 
some eminent bishops. It does discredit 
to the memory of Charlemagne that he 
was one of its warmest advocates.* But 
the judicial combat, which indeed might 
be re-^koned one species of ordeal, grad- 
ually put an end to the rest ; and as the 
church acquired better notions of law, 
and a code of her own, she strenuously 
exerted herself against all these barba- 
rous superstitions.! 

But we find one anecdote, which seems to illus- 
trate its derivation from the ju(iicial combat. The 
dukes of Lancaster and Brunswick, having some 
differences, agreed to decide them by duel before 
John, king of France. The lists were prepared 
■with the solemnity of a real trial by battle ; but 
the king interfered to prevent the engagement. — 
Villaret, t. i.x., p. 71. The barbarous practice of 
wearing swords as a part of domestic dress, which 
tended very much to the frequency of duelling, 
was not introduced till the latter part of the fif- 
teenth century. I can only find one print in 
Montfaucon's Monuments of the French monar- 
chy where a sword is worn without armour before 
the reign of Charles V'lII. : though a few, as early 
as the reign of Charles VI., have short daggers in 
their girdles. The exception is a figure of Charles 
VII., t. iii., pi. 47. 

* Baluzii Capitularia, p. 444. It was abolished 
by Louis the Debonair, a man, as I have noticed in 
another place, not inferior, as a legislator, to his 
father, ibid , p. 668. 

t Ordeals were not actually abolished in France, 
notwithstanding the law of Louis above mention- 
ed, so late as the eleventh century. — Bouquet, t. 
xi., p. 430; nor in England till the reign of Hen- 
ry III. Some of the stories we read, wherein ac- 
cused persons have passed triumphantly through 
these severe proofs, are perplexing enough : and 
perhaps it is safer, as well as easier, to deny than 



But the religious ignorance of the mid- 
dle ages sometimes burst out in Enthusias- 
ebullitions of epidemical eiithu- "c risings. 
siasm, more remarkable than these su- 
perstitious usages, though proceeding in 
fact from similar causes. P'or enthusi- 
asm is little else than superstition put in 
motion, and is equally founded on a strong 
conviction of supernatural agency witli- 
out any just conception of its nature. 
Nor has any denomination of Christians 
produced, or even sanctioned, more fa- 
naticism than the church of Rome.* 
These epidemical phrensies, however, 
to which I am alluding, were merely tu- 
multuous, though certainly fostered by 
the creed of perpetual miracles, which 
the clergy inculcated, and drawing a 
legitimate precedent for religious insur- 
rection from the crusades. For these, 
among their other evil consequences, 
seem to have principally excited a wild 
fanaticism that did not sleep for several 
centuries. f 

The first conspicuous appearance of it 
Avas in the reign of Philip Augustus, Avhen 
the mercenary troops, dismissed from 
the pay of that prince and of Henry II., 
committed the greatest outrages in the 
soutli of France. One Durand, a carpen- 
ter, deluded, it is said, by a contrived ap- 
pearance of the Virgin, put himself at the 
head of an army of the populace, in or- 
der to destroy these marauders. His 



to explain them. For example, a writer in the Ar- 
chsologia, vol. xv., p. 172, has shown that Emma, 
queen of Edward the Confessor, did not perform 
her trial by stepping between, as Blackstone ima- 
gines, but vpon nine redhot ploughshares. But 
he seems not aware that the whole story is unsup- 
ported by any contemporary or even respectable 
testimony. A similar anecdote is related of Cune- 
gunda, wife of the Emperor Henry I^, which prob- 
ably gave rise to that of Einma. There are, how- 
ever, medicaments, as is well known, that protect 
the skin to a certain degree against the effect of 
fire. This phenomenon would pass for miracu- 
lous, and form the basis of those exaggerated sto- 
ries in monkish books. 

* Besides the original lives of popish saints, and 
especially that of St. Francis in Wadding's Annales 
Mmorum, the reader will find amusement in Bishop 
Lavington's Enthusiasm of Methodists and Papists 
compared. 

t The most singular effect of this crusading 
spirit was witnessed in 1211, when a multitude, 
amounting, as some say, to 90,000, chiefly com- 
posed of children, and commanded by a child, set 
out for the purpose of recovering the Holy Land 
They came for the most part from Germany, and 
reached Genoa without harm. But finding there 
an obstacle which their imperfect knowledge of 
geography had not anticipated, they soon dispersed 
in various directions. Thirty thousand arrived at 
Marseilles, where part were murdered, part proba 
bly starved, and the rest sold to the Saracens. — 
Annali di Muratori, A. D. 1211. Velly, Hist, de 
France, t. iv., p. 206 



464 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



followers were styled Brethren of the 
White Caps, from the linen coverings of 
their heads. They bound themselves not 
to play at dice, nor frequent taverns ; to 
wear no affected clothing, to avoid per- 
jury and vain swearing. After some 
successes over the plunderers, they went 
so far as to forbid the lords to take any 
dues from tlieir vassals, on pain of incur- 
ring the indignation of the brotherhood, 
it may easily be imagined that they were 
soon entirely discomrited, so that no one 
dared to own that he had belonged to 
them.* 

During the captivity of St. Louis in 
Egypt, a more extensive and terrible fer- 
ment broke out in Flanders, and spread 
from thence over great part of France. 
An impostor declared himself commis- 
sioned by the Virgin to preach a crusade, 
not to the rich and noble, who, for their 
pride, had been rejected of God, but the 
poor. His disciples were called Pastou- 
reaux, the simplicity of shepherds having 
exposed them more readily to this delu- 
sion. In a short time they were swelled 
by the confluence of abundant streams to 
a moving mass of a hundred thousand 
men, divided into companies, with ban- 
ners bearing a cross and a lamb, and 
commanded by the impostor's lieuten- 
ants. He assumed a priestly character, 
preaching, absolving, annulling marriages. 
At Amiens, Bourges, Orleans, and Paris 
itself, he was received as a divine prophet. 
Even the regent Blanche, for a time, was 
led away by the popular tide. His main 
topic was reproach of the clergy for their 
idleness and corruption, a theme well 
adapted to the ears of the people, who 
had long been uttering similar strains of 
complaint. In some towns his followers 
massacredtthe priests and plundered the 
monasteries. The government at length 
began to exert itself; and the public sen- 
timent turning against the autliors of so 
much confusion, this rabble was put to the 
sword or dissipated. f Seventy years af- 
terward, an insurrection almost exactly 
parallel to this burst out under the same 
pretence of a crusade. These insurgents 
too bore the name of Pastoureaux, and 
their short career was distinguished by a 
general massacre of the Jews.| 

But though the contagion of fanaticism 
spreads much more rapidly among the 
populace, and in modern limes is almost 



* V'elly, t. iii., p, 295. Du Cange, v. Capuciati. 

t Id., Hist, de France, t. v., p. 7. Du Cange, v. 
Pastorielli. 

% Id., t. viii., p. 99. The continuator of Nangis 
says, sicut fumus subitoevanuit tota ilia commotio. 
— Spicilegium, t iii., p. 77. 



entirely confined to it, there were exam- 
ples in the middle ages of an epidemical 
religious lunacy, from which no class 
was exempt. One of these occurred 
about the year 1260, when a multitude 
of every rank, age, and sex, marching two 
by two in procession along the streets 
and public roads, mingled groans and 
dolorous hymns with the sound of leath- 
ern scourges which they exercised upon 
their naked backs. From this mark of 
penitence, which, as it bears at least all 
the appearance of sincerity, is not un- 
common in the church of Rome, they 
acquired the name of Flagellants. Their 
career began, it is said, at Perugia, whence 
they spread over the rest of Italy, and 
into Germany and Poland. As this spon- 
taneous fanaticism met with no encour- 
agement from the church, and was pru- 
dently discountenanced by the civil ma- 
gistrate, it died away in a very short 
time.* But it is more surprising, that, 
after almost a century and a half of 
continual improvement and illumination, 
another irruption of popular extravagance 
burst out under circumstances exceeding- 
ly similar.! I'^ ^^he month of August, 
1399, says a contemporary historian, 
there appeared all over Italy a descrip- 
tion of persons called Bianchi, from the 
white linen vestments that tliey wore. 
They passed from province to province, 
and from city to city, crying out Miseri- 
cordia ! with their faces covered and 
bent towards the ground, and bearing 
before them a great crucifix. Their con- 
stant song was, Stabat Mater dolorosa. 
This lasted three months ; and whoever 
did not attend their procession was re- 
puted a heretic. I Almost every Italian 
writer of the time takes notice of these 
Bianchi ; and Muratori ascribes a re- 
markable reformation of manners (though 
certainly a very transient one) to their 
influence.^ Nor were they confined to 
Italy, though no such meritorious exer- 
tions are reputed to them in other coun- 
tries. In France, their practice of cov- 



* Velly, t. v., p. 279. Du Cange, Verberatio. 

t Something of a similar k«id is mentioned by 
G. ViUani, under the year 1310, 1. viii., c. 122. 

t Annal. Mediolan. in Murat. Script. Rer. Ital., 
t. xvi., p. 832. G. Stella, Ann. Genueiis., t. xvii., p. 
1072. Chron. Foroliviense, t. xix., p. 874. Ann. 
Bonincontri, t. xxi., p. 79. 

(} Dissert. 75. Sudden transitions from profli- 
gate to austere manners were so common among 
individuals, that we cannot be surpiised at their 
sometimes becoming in a manner national. Aza- 
rius, a chronicler of Milan, after describing the al- 
most incredible dissoluteness of Pavia, gives an ac- 
count of an instantaneous reformation wrought by 
the preaching of a certain friar. This was about 
1360.— Script Rer. Ital, t. xvi., p. 375. 



Part I.] 



STATE OF SOCIETY. 



465 



ering the face gave such opportunity to 
crime as to be prohibited by the govern- 
ment ;* and we have an act on the rolls 
of the first parliament of Henry IV., for- 
bidding any one, " under pain of forfeit- 
ing all his worth, to receive the new sect 
in white clothes, pretending to great 
sanctity," which had recently appeared 
in foreign parts. f 

The devotion of the multitude was 
Pretenrfert wrought to this feverish height 
miracles. |r,y jjjg prevailing system of the 
clergy. In that singular polytheism 
which had been grafted on the language 
rather than the principles of Christianity, 
nothing was so conspicuous as the behef 
of perpetual miracles; if indeed those 
could properly be termed miracles, which, 
by their constaitt recurrence, even upon 
trifling occasions, might seem within the 
ordinary dispensations of Providence. 
These superstitions arose in what are call- 
ed primitive times, and are certainly no 
part of popery, if in that word we include 
any especial reference to the Roman see. 
But successive ages of ignorance swelled 
the delusion to such an enormous pitch, 
that it was as difficult to trace, we may 
say without exaggeration, the real reli- 
gion of the Gospel in the popular belief 
of the laity, as the real history of Charle- 
magne in the romance of Turpin. It 
must not be supposed that these absurd- 
ities were produced, as well as nour- 
ished, by ignorance. In most cases they 
were the work of deliberate imposture. 
Every cathedral or monastery had its 
tutelar saint, and every saint his legend, 
fabricated in order to enrich the church- 
es under his protection, by exaggerating 
his virtues, his miracles, and consequent- 
ly his power of serving those who paid 
liberally for his patronage. J Many of 
those saints were irhaginary persons ; 
sometimes a blundered inscription added 
a name to the calendar; and sometimes, 
it is said, a heathen god was surprised at 
the company to which he was introduced, 
and the rites with which he was honour- 
ed.^ 

It would not be consonant to the na- 
M schiefs ^^^^ °^ ^^® present work, to 
arising from dwell uponthe erroneousness 

* Villaret, t. xii., p. 327. 

■f Rot. Pari., V. iii., p. 428. 

j This is confessed by the authors of Histoire 
Litteraire de la France, t. ii., p. 4, and indeed by 
many Catholic writers. I need not quote Mo- 
Bheiin, who more than confirms every word of my 
text. 

(j Middleton's Letter from Rome. If some of 
our eloquent countrymen's positions should be dis- 
puted, there are still abundant Catholic testimo- 
nies, that imagmary saints have been canonized. 
Gg 



of this religion; but its effect upon twasuper- 
the moral and intellectual charac- ^tn'on- 
ter of mankind was so prominent, that no 
one can take a philosophical view of the 
middle ages without attending more than 
is at present fashionable to their ecclesi- 
astical history. That the exclusive wor- 
ship of saints, under the guidance of an 
artful though illiterate priesthood, de- 
graded the understanding, and begot a 
stupid credulity and fanaticism, is suffi- 
ciently evident. But it was also so man- 
aged as to loosen the bonds of religion, 
and pervert the standard of morality. If 
these inhabitants of heaven had been rep- 
resented as stern avengers, accepting no 
shght atonement for heavy offences, and 
prompt to interpose their control over 
natural events for the detection and pun- 
ishment of guilt, the creed, however im- 
possible to be reconciled with experience, 
might have proved a salutary check upon 
a rude people, and would at least have 
had the only palliation that can be offer- 
ed for a religious imposture, its political 
expediency. In the legends of those 
times, on the contrary, they appeared 
only as perpetual intercessors, so good- 
natured and so powerful, that a sinner 
was more emphatically foolish than he is 
usually represented, if he failed to secure 
himself against any bad consequences. 
For a little attention to the saints, and 
especially to the Virgin, with due liberal- 
ity to their servants, had saved, we would 
be told, so many of the most atrocious 
delinquents, that he might equitably pre- 
sume upon similar luck in his own case. 
This monstrous superstition grew to 
its height in the twelfth century. For 
the advance that learning then made was 
by no means sufficient to counteract the 
vast increase of monasteries, and the op- 
portunities which the greater cultivation 
of modern languages afforded for the dif- 
fusion of legendary tales. It was now 
too that the veneration paid to the Virgin, 
in early times very great, rose to an al- 
most exclusive idolatr)^ It is difficult to 
conceive the stupid absurdity, and the 
disgusting profaneness of those stories, 
which were invented by the monks to do 
her honour. A few examples have been 
thrown into a note.* 

* Le Grand d'Aussy has given us, in the fifth vol- 
ume of his Fabliaux, several of the religious tales 
by which the monks endeavoured to withdraw the 
people from romances of chivalry. The following 
specimens will abundantly confirm my assertions, 
which may perhaps appear harsh and extravagant 
to the reader. 

There was a man whose occupation was high- 
way robbery ; but, whenever he set out on any such 
expedition, he was careful to address a prayer to 



466 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



Wliether the superstition of these dark 
-. ages had actually passed that 

geuier'nn- point, when it becomes more 
mixed with injurious to public morals and 
^'"*'^' the welfare of society than the 

entire absence of all religious notions, is 

the Virgin. Taken at last, he was sentenced to 
be hanged. While the cord was round his neck, 
he made his usual prayer, nor was it ineffectual. 
The Virgin supported his feet " with her while 
hands," and thus kept hnn alive two days, to the 
no small surprise of the executioner, who attempt- 
ed to complete his work with strokes of a sword. 
But the same invisible hand turned aside the wea- 
pon, and the executioner was compelled to release 
his victim, acknowledging the miracle. The thief 
retired into a monastery, which is always the ter- 
mination of these deliverances. 

At the monastery of St. Peter, near Cologne, 
lived a monk perfectly dissolute and irreligious, 
but very devout towards the Apostle. Unluckily, 
he died suddenly without confession. The fiends 
came as usual to seize his soul. St. Peter, vexed 
at losing so faithful a votary, besought God to ad- 
mit the monk into Paradise. His prayer was re- 
fused, and though the whole body of saints, apos- 
tles, angels, and martyrs joined at his request to 
make interest, it was of no avail. In this extremi- 
ty he had recourse to the Mother of God. " Fair 
lady," he said, " my monk is lost if you do not in- 
terfere for him ; but what is impossible for us will 
be but sport to you, if you please to assist us. Your 
son, if you but speak a word, must yield, since it is 
in your power to command him." The Queen 
Mother assented, and, followed by all the virgins, 
moved towards her Son. He who had himself 
given the precept. Honour thy father and thy moth- 
er, no sooner saw his own parent approach, than he 
rose to receive her ; and, taking her by the hand, 
inquired her wishes. The rest may be easily con- 
jectured. Compare the gross stupidity, or rather 
the atrocious-impiety of this tale, with the pure the- 
ism of the Arabian Nights, and judge whether the 
Deity was better worshipped at Cologne or at Bag- 
dad. 

It is unnecessary to multiply instances of this 
kind. In one tale the Virgin takes the shape of a 
nun, who had eloped from the convent, and per- 
forms her duties ten years, till, tired of a liber- 
tine life, she returns unsuspected. This was in 
consideration of her having never omitted to say 
an Ave as she passed the Virgin's image. In an- 
other, a gentleman, in love with a handsome wid- 
ow, consents, at the instigation of a sorcerer, to 
renounce God and the saints, but cannot be per- 
suaded to give up the Virgin, well knowing that, 
if he kept her his friend, he should obtain pardon 
through her means. Accordingly, she inspired his 
mistress with so much passion, that he married 
her within a few days. 

These tales, it may be said, were the production 
of ignorant men, and circulated among the popu- 
lace. Certainly they would have excited contempt 
and indignation in the more enlightened clergy. 
But I am concerned with the general character of 
religious notions among the people : and for this 
it is better to take such popular compositions, 
adapted to what the laity already believed, than 
the writings of comparatively learned and reflect- 
ing men. However, stories of the same cast are 
frequent in the monkish historians. Matthew Par- 
is, one of the most respectable of that class, and 
no friend to the covntousness or relaxed lives of 
the priesthood, tells us of a knight who was on the 
point of being damned for frequenting tournaments, 



a very complex question, upon which I 
would by no means pronounce an affirm- 
ative decision. A salutary influence, 
breathed from the spirit of a more gen- 
uine religion, often displayed itself among 
the corruptions of a degenerate supersti- 
tion. In the original principles of mo- 
nastic orders, and the rules by which they 
ought at least to have been governed, 
there was a character of meekness, self- 
denial, and charity, that could not wholly 
be effaced. These virtues, rather than 
justice and veracity, were inculcated by 
the religious ethics of the middle ages ; 
and in the relief of indigence, it may, 
upon the whole, be asserted, that the 
monks did not fall short of their profes- 
sion.* This eleemosynary spirit, indeed, 
remarkably distinguishes both Christian- 
ity and Maho melanism from the moral 
systems of Greece and Rome, which 
were very deficient in general humanity 
and sympathy with suffering. Nor do we 
find in any single instance during ancient 
times, if I mistake not, those public in- 
stitutions for the alleviation of human 
miseries, which have long been scattered 
over every part of Europe. The virtues 
of the monks assumed a still higher char- 
acter when they stood forward as pro- 
tectors of the oppressed. By an estab- 
lished law, founded on very ancient su- 
perstition, the precincts of a church af- 
forded sanctuary to accused persons. 
Under a due administration of justice, 
this privilege would have been simply 
and constantly mischievous, as we prop- 
erly consider it to be in those countries 
where it still subsists. But in the rapine 
and tumult of the middle ages, the right 
of sanctuary might as often be a shield 
to innocence as an immunity to crime. 
We can hardly regret, in reflecting on the 
desolating violence which prevailed, that 

but saved by a donation he had formerly made to 
the Virgin, p. 290. 

* I am inclined to acquiesce in this general 
opinion ; yet an account of expenses at Bolton 
Abbey, about the reign of Edward II., published in 
Whitaker's History of Craven, p. 51, makes a very 
scanty show of almsgiving in this opulent monas- 
tery. Much, however, was no doubt given in vict- 
uals. But it is a strange error to conceive that 
English monasteries before the dissolution fed the 
indigent part of the nation, and gave that general 
relief which the poor-laws are intended to afford. 

Piers Plowman is indeed a satirist; but he 
plainly charges the monks with want of charity. 
Little had lordes to do to give landes from their 

heires. 
To religious that have no ruthe though it rain on 

their aultres ; 
In many places there the parsons be themself at 

ease, 
Of the poor they have no pitie, and that is their 

poor charitie. 



Part I.] 



STATE OF SOCIETY. 



467 



there should have been some green spots 
in the wilderness, where the feeble and 
the persecuted could find refuge. How 
must this right have enhanced the ven- 
eration for religious institutions ! How 
gladly must the victims of internal war- 
fare have turned their eyes from the 
baronial castle, the dread and scourge of 
the neighbourhood, to those venerable 
walls, within which not even the clam- 
our of arms could be heard, to disturb the 
chant of holy men, and the sacred service 
of the altar ! The protection of the sanc- 
tuary was never withheld. A son of 
Chilperic, king of France, having fled to 
that of Tours, his father threatened to 
ravage all the lands of the church unless 
they gave him up. Gregory, the histo- 
rian, bishop of the city, replied in the 
name of his clergy, that Christians could 
not be guilty of an act unheard of among 
pagans. The king was as good as his 
word, and did not spare the estate of the 
church, but dared not infringe its privi- 
leges. He had indeed previously ad- 
dressed a letter to St. Martin, which was 
laid on his tomb in the church, request- 
ing permission to take away his son by 
force ; but the honest saint returned no 
answer.* 

The virtues, indeed, or supposed vir- 
Vicesofthe tues, which had induced a cred- 
tnonks and ulous generation to enrich so 
clergy. many of the monastic orders, 
were not long preserved. We must re- 
ject, in the excess of our candour, all 
testimonies that the middle ages present, 
from the solemn declaration of council's, 
and reports of judicial inquiry, to the 
casual evidence of common fame in the 
ballad or romance, if we would extenu- 
ate the general corruption of those insti- 
tutions. In vain new rules of discipline 
were devised, or the old corrected by re- 
forms. Many of their worst vices grew 
so naturally out of their mode of life, that 
a stricter discipline could have no ten- 
dency to extirpate them. Such were the 
frauds I have already noticed, and the 
whole scheme of hypocritical austerities. 
Their extreme licentiousness was some- 
times hardly concealed by the cowl of 
sanctity. I know not by what right we 
should disbeheve the reports of the visit- 
ation under Henry VHI., entering as they 
do into a multitude of specific charges, 
both probable in their nature and conso- 
nant to the unanimous opinion of the 
world. t Doubtless there were many 

♦ Schmidt, Hist, des Allemands, t. i., p. 374. 

t See Fosbrooke's British Monachism, vol. i., 
p. 127, and vol. ii.,p. 8, lor a farrago of evidence 
against the monks. Cleinangis, a French theolo- 
Gg2 



communities, as well as individuals, to 
whom none of these reproaches would 
apply. In the very best view, however, 
that can be taken of monasteries, their 
existence is deeply injurious to the gen- 
eral morals of a nation. They withdraw 
men of pure conduct and conscientious 
principles from the exercise of social du- 
ties, and leave the common mass of hu- 
mair vice more unmixed. Such men are 
always inclined to form schemes of as- 
cetic perfection, which can only be ful- 
filled in retirement; but, in the strict 
rules of monastic life, and under the in- 
fluence of a grovelling superstition, their 
virtue lost all its usefulness. They fell 
implicitly into the snares of crafty priests, 
who made submission to the church not 
only the condition, but the measure of all 
praise. He is a good Christian, says 
Eligius, a saint of the seventh century, 
who comes frequently to church ; who 
presents an oblation that it may be of- 
fered to God on the altar ; who does not 
taste the fruits of his land till he has con- 
secrated a part of them to God ; who can 
repeat the Creed or the Lord's Prayer. 
Redeem your souls from punishment 
while it is in your power ; oflTer presents 
and tithes to churches, light candles in 
holy places as much as you can afford, 
come more frequently to church, implore 
the protection of the saints ; for, if you 
observe these things, you may come with 
security at the day of judgment to say. 
Give unto us, Lord, for we have given 
unto thee.* 



gian of considerable eminence at the beginning of 
the fifteenth century, speaks of nunneries in the 
following terms : Quid aliud sunt hoc tempore 
puellarum monastena, nisi quaedam non dico Dei 
sanctuaria, sed Veneris e.xecranda prostibula, sed 
lascivorum et iinpudicorum juvenum ad libidines 
explendas receptacula '/ ut idem sit hodie puellara 
elare, quod et public^ ad scortandum exponere. — 
William Prynne, from whose records, vol. ii., p. 
229, I have taken this passage, quotes it on occa- 
sion of a charier of King John, banishing thirty 
nuns of Ambresbury into different convents, prop- 
ter vitae suae turpitudinem. 

* Mosheim, cent, vii., c. 3. Robertson has 
quoted this passage, to whom perhaps I am imme- 
diately indebted for it. — Hist. Charles V., vol. i., 
note 11. 

I leave this passage as it stood in former edi- 
tions. But it is due to justice that this extract 
from Eligius should never be quoted in future, as 
the translator of Mosheim has induced Robertson 
and many others, as well as myself, to do. Dr. 
Lingard has pointed out that it is a very imperfect 
representation of what Eligius has written ; for 
though he has dwelled on these devotional prac- 
tices as parts of the definition of a good Christian, 
he certainly adds a great deal more to which no 
one could object. Yet no one is in fact to blame 
for this misrepresentation, which, being contained 
in popular books, has gone forth so widely. Mo- 
sheim, as will appear on referring to him, did not 



468 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX, 



With such a definition of the Christian 
character, it is not surprising that any 
fraud and injustice became honourable 
when it contributed to the riches of the 
clergy and glory of their order. Their 
frauds, however, were less atrocious than 
the savage bigotry with which they main- 
tained their own system and infected the 
laity. In Saxony, Poland, Lithuania, and 
the countries on the Baltic Sea, a san- 
guinary persecution extirpated the origi- 
nal idolatry. The Jews were every- 
where the objects of popular insult and 
oppression, frequently of a general mas- 
sacre, though protected, it must be con- 
fessed, by the laws of the church, as well 
as, in general, by temporal princes.* Of 
the crusades it is only necessary to re- 
peat, that they began in a tremendous 
eruption of fanaticism, and ceased only 
because that spirit could not be constant- 
ly kept alive. A similar influence pro- 
duced the devastation of Languedoc, the 
stakes and scaffolds of the Inquisition, 
and rooted in the rehgious theory of Eu- 
rope those maxims of intolerance which 
it has so slowly, and still, perhaps, so im- 
perfectly, renounced. 

From no other cause are the dictates 
of sound reason and the moral sense of 
mankind more confused than by this nar- 
row theological bigotry. For as il must 
often happen that men, to whom the ar- 
rogance of a prevailing faction imputes 
religious error, are exemplary for their 
performance of moral duties, these vir- 
tues gradually cease to make their 
proper impression, and are depreciated 
by the rigidly orthodox, as of little value 



quote the passage as containing a complete defini' 
tion of the Christian character. His translator, 
Maclaine, mistook this, and wrote, in consequence, 
the severe note which Robertson has copied. I 
have seen the whole passage in D'Achery's Spici- 
legium (vol. v., p. 213, 4to. edit.), and can testify 
that Dr. Lingard is perfectly correct. Upon the 
whole, this is a striking proof how dangerous it is 
to take any authorities at second hand. — Note to 
Fourth Edition. 

* Mr. Turner has collected many curious facts 
relative to the condition of the Jews, especially in 
England. — Hist, of England, vol. ii., p. 95. Others 
may be found dispersed in Velly's History of 
France ; and many in the Spanish writers, Mari- 
ana and Zurita. The following are from Vais- 
sette's History of Languedoc. It was the custom 
at Toulouse to give a blow on the face to a Jew 
every Easter; this was commuted in the twelfth 
century for a tribute, t. ii., p. 151. At Beziers an- 
other usage prevailed, that of attackmg the Jews' 
houses with stones from Palm Sunday to Easter. 
No other weapon was to be used ; but it generally 
produced bloodshed. The populace were regularly 
mstigated to the assault by a sermon from the 
bishop. At length a prelate wiser than the rest 
abolished this ancient practice, but not without re- 
ceivuig a good sum from the Jews, p. 485. 



in comparison with just opinions in 
speculative points. On the other hand, 
vices are forgiven to those who are zeal- 
ous in the faith. I speak too gently, and 
with a view to later times ; in treating 
of the dark ages, it would be more cor- 
rect to say that crimes were commend- 
ed. Thus Gregory of Tours, a saint of 
the church, after relating a most atro- 
cious story of Clovis, the murder of a 
prince whom he had previously instiga- 
ted to parricide, continues the sentence : 
" For God daily subdued his enemies to 
his hand, and increased his kingdom ; 
because he walked before him in upright- 
ness, and did what was pleasing in his 
eyes."* 

It is a frequent complaint of ecclesias- 
tical writers, that the rigorous commutv 
penances, imposed by the prim- tion of 
itive canons upon delinquents, P^'ances. 
were commuted in a laxer state of dis- 
cipline for less severe atonements, and 
ultimately indeed for money. f We must 
not, however, regret that the clergy 
should have lost the power of compelling 
men to abstain fifteen years from eating 
meat, or to stand exposed to public de- 
rision at the gates of a church. Such 
implicit submissiveness could only have 
produced superstition and hypocrisy 
among the laity, and prepared the road 
for a tyranny not less oppressive than 
that of India or ancient Egypt. Indeed, 
the two earliest instances of ecclesiasti- 
cal interference with the rights of sov- 
ereigns, namely, the deposition of Wam- 
ba in Spain, and that of Louis the Debo- 
nair, were founded upon this austere sys- 
tem of penitence. But it is true that a 
repentance redeemed by money, or per- 



* Greg. Tur., 1. ii., c. 40. Of Theodebert, 
grandson of Clovis, the same historian says, mag- 
num se etin omxii bonitate prajcipuum reddidit. In 
the next paragraph we find a story of his having 
two wives, and looking so tenderly on the daugh- 
ter of one of them, that her mother tossed her over 
a bridge into the river, 1. iii., c 25. This indeed is 
a trifle to the passage in the text. There are con- 
tinual proofs of immorality in the monkish histori- 
ans. In the history of Ramsey Abbey, one of our 
best documents for Anglo-Saxon times, we have an 
anecdote of a bishop who made a Danish nobleman 
drunk that he might cheat him of an estate, which 
is told with much approbation. — Gale, Script. An- 
glic, t. i.,p. 441. Walter de Hemingford recounts 
with excessive delight the well-known story of the 
Jews who were persuaded by the captain of their 
vessel to walk on the sands at low water, till the 
rising tide drowned them ; and adds that the cap- 
tain was both pardoned and rewarded for it by the 
king, gratiam promeruit et prsemium. This is a 
mistake, inasmuch as he was hanged ; but it ex- 
hibits the character of the historian. — Hemingford, 
p. 21. 

t Fleury, TroisiJme discours sur I'Histoire Ec- 
clesiastique. 



Part I.] 



STATE OF SOCIETY. 



469 



formed by a substitute, could have no 
salutary effect on the sinner ; and some 
of the modes of atonement which the 
church most approved were particularly 
hostile to public morals. None was so 
usual as pilgrimage, whether to Jerusa- 
lem or Rome, which were the great ob- 
jects of devotion ; or to the shrine of 
some national saint, a James of Compos- 
tella, a David, or a Thomas Becket. 
This licensed vagrancy was naturally 
productive of dissoluteness, especially 
among the women. Our English ladies, 
in their zeal to obtain the spiritual treas- 
ures of Rome, are said to have relaxed 
the necessary caution about one that 
was in their own custody.* There is 
a capitulary of Charlemagne directed 
against itinerant penitents, who probably 
considered the iron chain around their 
necks an expiation of future as well as 
past offences. f 

The crusades may be considered as 
martial pilgrimages on an enormous 
scale, and their influence upon general 
niorahty seems to have been altogether 
pernicious. Those who served under 
the cross would not indeed have lived 
very virtuously at home ; but the confi- 
dence in their own merits, which the 
principle of such expeditions inspired, 
must have aggravated the ferocity and 
dissoluteness of their ancient habits. 
Several historians attest the depravation 
of morals which existed both among the 
crusaders and in the states formed out of 
their conquests. | 

While religion had thus lost almost 
Want of every quality that renders it con- 
law. ducive to the good order of soci- 
ety, the control of human law was still 
less efficacious. But this part of my 
subject has been anticipated in other 
passages of the present work ; and I 
shall only glance at the want of regular 
subordination, which rendered legislative 
and judicial edicts a dead letter, and at 
the incessant private warfare, rendered 
legitimate by the usages of most conti- 
nental nations. Such hostilities, con- 
ducted, as they must usually have been, 
with injustice and cruelty, could not fail 
to produce a degree of rapacious feroci- 
ty in the general disposition of a people. 

* Henry, Hist, of England, vol. ii., c. 7. 

f Du Cange, V. Peregrinatio. Non sinantur va- 
gari isli nudi cum ferro, qui dicunt se datfi, poeni- 
tentia ire vagantes. Melius videtur, ut si aliquod 
inconsuetutn et capitale crimen commiserint, in 
uno loco permaneant laborantes et servientes et 
poEHitentiam agentes, secundum quod canonic^ iis 
impositum sit. 

t I. de Vitriaco, in Gesta Dei per Francos, t. i. 
Villani, 1. vii., c. 144. 



And this certainly was among the char- 
acteristics of every nation for many 
centuries. 

It is easy to infer the degradation of 
society during the dark ages from uegrada- 
the state of religion and police, non or 
Certainly there are a few great "'°''»'s- 
landmarks of moral distinctions so deep- 
ly fixed in human nature, that no degree 
of rudeness can destroy, nor even any 
superstition remove them. Wherever 
an extreme corruption has, in any par- 
ticular society, defaced these sacred 
archetypes that are given to guide and 
correct the sentiments of mankind, it is 
in the course of Providence that the so- 
ciety itself should perish by internal dis- 
cord or the sword of a conqueror. In 
the worst ages of Europe there must 
have existed the seeds of social virtues, 
of fidelity, gratitude, and disinterested- 
ness ; sutficient at least to preserve the 
public approbation of more elevated prin- 
ciples than the public conduct displayed. 
Without these imperishable elements, 
there could have been no restoration of 
the moral energies ; nothing upon which 
reformed faith, revived knowledge, re- 
newed law, could exercise their nourish- 
ing influences. But history, which re- 
flects only the more prominent features 
of society, cannot exhibit the virtues that 
were scarcely able to struggle through 
the general depravation. I am aware 
that a tone of exaggerated declamation 
is at all times usual with those who la- 
ment the vices of their own time ; and 
writers of the middle ages are in abun- 
dant need of allowance on this score. 
Nor is it reasonable to found any infer- 
ences as to the general condition of soci- 
ety on single instances of crimes, how- 
ever atrocious, especially when commit- 
ted under the influence of violent pas- 
sion. Such enormities are the fruit of 
every age, and none is to be measured 
by them. They make, however, a strong 
impression at the moment, and thus find 
a place in contemporary annals, from 
which modern writers are commonly 
glad to extract whatever may seem to 
throw light upon manners. I shall there- 
fore abstain from producing any particu- 
lar cases of dissoluteness or cruelty from 
the records of the middle ages, lest I 
should weaken a general proposition by 
offering an imperfect induction to sup- 
port it, and shall content myself with ob- 
serving, that times to which men some- 
times appeal, as to a golden period, were 
far inferior in every moral comparison to 
those in which we are thrown.* One 

1 * Henry has taken pains in drawing a picture 



470 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



crime, as more universal and character- 
istic than others, may bo particularly no- 
ticed. All writers agree in the preva- 
lence of judicial perjury. It seems to 
have almost invariably escaped human 
punishment ; and the barriers of super- 
stition were in this, as in every other in- 
stance, too feeble to prevent the com- 
mission of crimes. Many of the proofs 
by ordeal were applied to witnesses as 
well as those whom they accused ; and 
undoubtedly trial by combat was pre- 
served, in a considerable degree, on ac- 
count of the difficulty experienced in se- 
curing a just cause against the perjury 
of witnesses. Robert, king of France, 
perceiving how frequently men forswore 
themselves upon the relics of saints, and 
less shocked, apparently, at the crime 
than at the sacrilege, caused an empty 
reliquary of crystal to be used, that those 
who touched it might incur less guilt in 
fact, though not in intention. Such an 
anecdote characterizes both the man and 
the times.* 

The favourite diversions of the middle 
Love of ages, in the intervals of war, 
field sports, were those of hunting and 
hawking. The former must in all coun- 
tries be a source of pleasure ; but it 
seems to have been enjoyed in modera- 
tion by the Greeks and the Romans. With 
the northern invaders, however, it was 
rather a predominant appetite than an 
amusement ; it was their pride and their 
ornament, the theme of their songs, the 
object of their laws, and the business of 
their lives. Falconry, unknown as a di- 



not very favourable, of Anglo-Saxon manners. — 
Book II., chap. 7. This perhaps is the best chap- 
ter, as the volume is the best voUime, of his une- 
qual work. His account of the Anglo-Saxons is 
derived in a great degree from William of Malms- 
bury, who does not spare them. Their civil histo- 
ry, indeed, and their laws speak sufficiently against 
the character of that people. But the Normans 
had little more to boast of in respect of moral cor- 
rectness. Their luxurious and dissolute habits are 
as much noticed as their insolence ; et peccati cu- 
jusdam, ab hoc solo admodum alieni, flagr4sse in- 
famia testantur veteres. — Vid. Ordericus Vitalis, 
p. 602. Johann. Sarisburiensis Policraticus, p. 
194. Velly, Hist, de France, t. iii., p. 59. The 
state of manners in France under the two first 
races of kings, and in Italy both under the Lom- 
bards and the subsequent dynasties, may be col- 
lected from their histories, their laws, and those 
miscellaneous facts which books of every descrip- 
tion contain. Neither Velly, nor Muratori, Dis- 
sert. 23, is so satisfactory as we might desire. 

♦ Velly, Hist, de France, t. ii., p. 335. It has 
been observed, that Quid mores sine legibus '! is as 
just a question as that of Horace ; and that bad 
laws must produce bad morals. The strange prac- 
tice of requiring numerous compurgators lo prove 
the innocence of an accused person had a most 
obvious tendency lo increase perjury. 



version to the ancients, became from the 
fourth century an equally delightful occu- 
pation.* From the Salique and other bar- 
barous codes of the fifth century to the 
close of the period under our review, 
every age would furnish testimony to the 
ruling passion for these two species of 
chase, or, as they were sometimes called, 
the mysteries of woods and rivers. A 
knight seldom stirred from his house with- 
out a falcon on his wrist or a greyhound 
that followed him. Thus are Harold and 
his attendants represented, in tlie famous 
tapestry of Bayeux. And in the monu- 
ments of those who died anywhere but 
on the field of battle, it is usual to find 
the greyhound lying at their feet, or the 
bird upon their wrists. Nor are the 
tombs of ladies without their falcon; for 
this diversion being of less danger and 
fatigue than the chase, was shared by the 
delicate sex.j 

It was impossible to repress the eager- 
ness with which the clergy, especially 
after the barbarians were tempted by 
rich bishoprics to take upon them the sa- 
cred functions, rushed into these secular 
amusements. Prohibitions of councils, 
however frequently repeated, produced 
little effect. In some instances, a par- 
ticular monastery obtained a dispensa- 
tion. Thus that of St. Denis, in 774, rep- 
resented to Charlemagne that the flesh 
of hunted animals was salutary for sick 
monks, and that their skins would serve 
to bind the books in the library. J Rea- 
sons equally cogent, we may presume, 
could not be wanting in every other case. 
As the bishops and abbots were perfectly 
feudal lords, and often did not scniple to 
lead their vassals into the field, it was not 
to be expected that they should debar 
themselves of an innocent pastime. It 
was hardly such indeed, when practised 
at the expense of others. Alexander 
III., by a letter to the clergy of Berk- 
shire, dispenses with their keeping the 
archdeacon in dogs and hawks during 
his visitation.^ This season gave jovial 
ecclesiastics an opportunity of trying 
different countries. An archbishop of 
York, in 1321, seems to have carried a 
train of two hundred persons, who were 
maintained at the expense of the abbeys 
on his road, and to have hunted with a 
pack of hounds from parish to parish. j| 

* Muratori, Dissert. 23, t. i., p. 306. (Italian.) 
Beckman's Hist, of Inventions, vol. i., p. 319. Via 
privee des Franijais, t. ii., p. 1. 

t Vie privee des Fran<;ais, t. i., p. 320 ; t. ii. p. 11. 

i Idem, t. i., p. 324. () Rymer, t. i., p. 61. 

Il Whitaker's Hist, of Craven, p. 340, and of 
Whalley, p. 171. 



Part I.] 



STATE OF SOCIETY. 



471 



The third council of Lateran, in 1180, 
had prohibited this amusement on such 
journeys, and restricted bishops to a train 
of forty or fifty horses.* 

Though hunting had ceased to be a ne- 
cessary means of procuring food, it was 
a very convenient resource, on which the 
wholesomeness and comfort, as well as 
the luxury of the table depended. Be- 
fore the natural pastures were improved, 
and new kinds of fodder for cattle dis- 
covered, it was impossible to maintain 
the summer stock during the cold sea- 
son. Hence a portion of it was regularly 
slaughtered and salted for winter provis- 
ion. We may suppose, that when no al- 
ternative was offered but these salted 
meats, even the leanest venison was de- 
voured with relish. There was some- 
what more excuse, therefore, for the se- 
verity with which the lords of forests 
and manors preserved the beasts of 
chase, than if they had been considered 
as merely objects of sport. The laws 
relating to preservation of game were 
in every country uncommonly rigorous. 
They formed in England that odious 
system of forest-laws which distinguish- 
ed the tyranny of our Norman kings. 
Capital punishment for killing a slag or 
wild boar was frequent, and perhaps war- 
ranted by law, until the charter of .Tohn.f 
The French code was less severe, but 
even Henry IV. enacted the pain of death 
against the repeated offence of chasing 
deer in the royal forests. The privilege 
of hunting was reserved to the nobility 
till the reign of Louis IX., who extended 
it in some degree to persons of lower 
birth.J 

This excessive passion for the sports 
of the field produced those evils which 
are apt to result from it ; a strenuous 
idleness, which disdained all useful occu- 
pations, and an oppressive spirit towards 
the peasantry. The devastation com- 
mitted under the pretence of destroying 
wild animals, which had been already 
protected in their depredations, is noticed 
in serious authors, and has also been the 
topic of popular ballads.^ What effect this 

* Velly, Hist, de France, t. iii., p. 236. 

+ John of Salisbury inveighs against the game- 
laws of his age, with an odd transition from the 
Gospel to the Pandects. Nee veriti sunt hominem 
pro una bestiola perdcre, queni unigenitus Dei Fi- 
iius sangume redemit sue. Quse ferae naturas 
sunt, et de jure occupantium fiunt, sibi audet hu- 
mana tementas vindicare,&c — Policraticus, p. 18. 

t Le Grand, Vie privee des FranQais, t. i., p. 325. 

() For the injuries which this people sustained 
from the seignorial rights of the chase in the elev- 
enth century, see the llecueil des Historiens, in the 
valuable preface to the eleventh volume, p. 181. 
This continued to be felt in France down to the 



must have had on agriculture, it is easy 
to conjecture. The levelling of forests, 
the draining of morasses, and the extir- 
pation of mischievous animals which in- 
habit them, are the first objects of man's 
labour in reclaiming the earth to its use ; 
and these were forbidden by a landed 
aristocracy, whose control over the prog- 
ress of agricultural improvement was 
unlimited, and who had not yet learned 
to sacrifice their pleasures to their ava 
rice. 

These habits of the rich, and the mis- 
erable servitude of those who Bad state of 
cultivated the land, rendered agr'cu'iure. 
its fertility unavailing. Predial servitude 
indeed, in some of its modifications, has 
always been the great bar to improve- 
ment. In the agricultural economy of 
Rome, the labouring husband uian, a me- 
nial slave of some wealthy senator, had 
not even that qualified interest in the soil 
which the tenure of villanage afforded to 
the peasant of feudal ages. Italy, there- 
fore, a country presenting many natural 
impediments, was but imperfectly re- 
duced into cultivation before the irrup- 
tion of the barbarians.* That revolution 
destroyed agriculture with every other 
art, and succeeding calamities during five 
or six centuries, left the finest regions 
of Europe unfruitful and desolate. There 
are but two possible modes in which the 
produce of the earth can be increased ; 
one by rendering fresh land serviceable ; 
the other by improving the fertility of 
that which is already cultivated. The 
last is only attainable by the application 
of capital and of skill to agriculture : 
neither of which could be expected in 
the ruder ages of society. The former 
is, to a certain extent, always practicable 
while waste lands remain ; but it was 
checked by laws hostile to improvement, 
such as the manorial and commonable 
rights in England, and by the general 
tone of manners. 

Till the reign of Charlemagne there 
were no towns in Germany, except a 
few that had been erected on the Rhine 

revolution, to which it did not perhaps a little con- 
tribute.— (See Young's Travels in France.) The 
monstrous privilege of free-warren (monstrous, I 
mean, when not originally founded upon the prop- 
erty of the soil) is recognised by our own laws, 
though !n this age it is not often that a court and 
jury will sustain its e.Kercise. Sir Walter Scott's 
ballad of the Wild Huntsman, from a German ori- 
ginal, is well known ; and I believe there are sev- 
eral others in that country not dissimilar in subject. 
* Muratori, Dissert. 21. This dissertation con- 
tains ample evidence of the wretched state of cul- 
ture in Italy, at least in the northern parts, both 
before the irruption of the barbarians, and, in a 
much greater degree, under tlie Lombard kings. 



472 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



and Danube by the Romans. A house 
with its stables and fann-buildings, sur- 
rounded by a hedge or enclosure, was 
called a court, or, as Ave find it in our 
law-books, a curtilage ; the toft or home- 
stead of a more genuine English dialect. 
One of these, with the adjacent domain of 
arable fields and woods, had the name of 
a villa or manse. Several manses com- 
posed a march ; and several marches 
formed a pagus, or district.* From these 
elements in the progress of population, 
arose villages and towns. In France 
undoubtedly there were always cities of 
some importance. Country parishes 
contained several manses or farms of 
arable land, around a common pasture, 
where every one was bound by custom to 
feed his cattle. f 

The condition even of internal trade 
Of inter- was hardly preferable to that of 
nai trade, agriculture. There is not a ves- 
tige perhaps to be discovered for several 
centuries of any considerable manufac- 
ture ; I mean of working up articles of 
common utility to an extent beyond what 
the necessities of an adjacent district re- 
quired. J Rich men kept domestic arti- 
sans among their servants ; even kings, 
in the ninth century, had their clothes 
made by the women upon their farms :^ 
but the peasantry must have been suppli- 
ed with garments and implements of la- 
bour by purchase, and every town, it can- 
not be doubted, had its weaver, its smith, 
and its currier. But there were almost 
insuperable impediments to any extended 



* Schmidt, Hist, des Allem., t. i., p. 408. The 
following passage seems to illustrate Schmidt's 
account of German villages in the nmth century, 
though relating to a different age and country. 
•' A toft," says Dr. Whitaker, " is a homestead in a 
village, so called from the small tufts of maple, 
elm, ash, and other wood, with which dwelling- 
houses were anciently overhung. Even now it is 
impossible to enter Craven without being struck 
with the insulated homesteads, surrounded by their 
little garths, and overhung with tufts of trees. 
These are the genuine tofts and crofts of our an- 
cestors, with the substitution only of stone to the 
wooden crocks and thatched roofs of antiquity." 
—Hist, of Craven, p. 380. 

t It is laid down in the Speculum Saxonicam, a 
collection of feudal customs which prevailed over 
most of Germany, that no one might have a sep- 
arate pasture for his cattle unless he possessed 
three mansi.— Du Cange, Mansus. There seems 
to have been a price paid, I suppose to the lord, for 
agistment in the common pasture. 

X The only mention of a manufacture, as early 
as the ninth or tenth centuries, that I remember to 
have met with, is in Schmidt, t. ii., p. 140, who 
says, that cloths were exported from Friseland to 
England and other parts. He quotes no authori- 
ty, but I am satisfied that lie has not advanced the 
fact gratuitously. 

§ Schmidt, t. i., p. 411 ; t. ii., p. 116. 



trafllc; the insecurity of moveable wealth, 
and difficulty of accumulating it ; the ig- 
norance of mutual wants ; the peril of 
robbery in conveying merchandise, and 
the certainty of extortion. In the do- 
mains of every lord, a toll was to be paid 
in passing his bridge, or along his high- 
way, or at his market.* These customs, 
equitable and necessary in their princi- 
ple, became in practice oppressive, be- 
cause they were arbitrary, and renewed 
in every petty territory which the road 
might intersect. Several of Charle- 
magne's capitularies repeat complaints 
of these exactions, and endeavour to 
abolish such tolls as were not founded on 
prescription.! One of them rather amu- 
singly illustrates the modesty and mod- 
eration of the landholders. It is enacted 
that no one shall be compelled to go out 
of his way in order to pay toll at a par- 
ticular bridge, when he can cross the 
river more conveniently at another 
place. J These provisions, like most 
others of that age, were unlikely to pro- 
duce much amendment. It was only 
the milder species, however, of feudal 
lords who were content with the tribute 
of merchants. The more ravenous de- 
scended from their fortresses to pillage 
the wealthy traveller, or shared in the 
spoil of inferior plunderers, whom they 
both protected and instigated. Proofs 
occur, even in the later periods of the 
middle ages, when government had re- 
gained its energy, and civilization had 
made considerable progress, of public 
robberies systematically perpetrated by 
men of noble rank. In the more savage 
times, before the twelfth century, they 
were probably too frequent to excite 
much attention. It was a custom in 
some places to waylay travellers, and 
not only to plunder, but to sell them as 
slaves, or compel them to pay a ransom. 
Harold, son of Godwin, having been 
wrecked on the coast of Ponthieu, was 
imprisoned by the lord, says an historian, 
according to the custom of that territo- 
ry.^ Germany appears to have been, 
upon the whole, the country where down- 
right robbery was most unscrupulously 
practised by the great. Their castles, 
erected on almost inaccessible heights 



* Du Cange, Pedagium, Pontaficum, Telone- 
um, Mercatum, Stallagium, Lastagium, &c. 

t Baluz. Capit., p. 621, et alibi. 

t Ut nulhis cogatur ad pontem ire ad fluvium 
transeundum propter telonei causas quando ille in 
alio loco compendiosius illud flumen transire po- 
test, p. 764, et alibi. 

() Eadmer apiid Recueil des Historiens des 
Gautes, t. xi., preface, p. 192. Pro ritu illius loci 
a domino terrae captivitati addicitur. 



Part I.] 



STATE OF SOCIETY. 



473 



among the woods, became the secure re- 
ceptacles of predatory bands, who spread 
terror over the country. From these 
barbarian lords of the dark ages, as from 
a living model, the romancers are said to 
have drawn their giants and other disloy- 
al enemies of true chivalry. Robbery 
indeed is the constant theme both of the 
Capitularies and of the Anglo-Saxon 
laws ; one has more reason to wonder at 
the intrepid thirst of lucre, which indu- 
ced a very few merchants to exchange 
the products of different regions, than to 
ask why no general spirit of commer- 
cial activity prevailed. 

Under all these circumstances, it is 
And of for- obvious that very little oriental 
eign com- trade could have existed in these 
merce. western countries of Europe. 
Destitute as they have been created, 
speaking comparatively, of national pro- 
ductions fit for exportation, their inven- 
tion and industry are the great resources 
from which they can supply the demands 
of the east. Before any manufactures 
were established in Europe, her com- 
mercial intercourse with Egypt and Asia 
must of necessity have been very trifling; 
because, whatever inclination she might 
feel to enjoy the luxuries of those genial 
regions, she wanted the means of obtain- 
ing them. It is not therefore necessary 
to rest the miserable condition of oriental 
commerce upon the Saracen conquests, 
because the poverty of Europe is an ade- 
quate cause ; and, in fact, what little traf- 
fic remained was carried on with no ma- 
terial inconvenience through the channel 
of Constantinople. Venice took the lead 
in trading with Greece and more eastern 
countries.* Amalfi had the second place 
in the commerce of those dark ages. 
These cities imported, besides natural 
productions, the tine clothes of Constan- 
tinople ; yet, as this traffic seems to have 
been illicit, it was not probably exten- 
sive. f Their exports were gold and sil- 

* Heeren has frequently referred to a work pub- 
lished in 1789, by Marini, entitled Storia civile e 
politica del Commerzio de' Veneziani, which casts 
a new light upon the early relations of Venice with 
the east. Of this book I know nothing' but a 
memoir by De Guignes, in the thirty-seventh vol- 
ume of the Academy of Inscriptions, on the com- 
merce of France with the east before the crusades, 
is singularly unproductive ; the fault of the sub- 
ject, not of the author. 

t There is an odd passage in Luitprand's relation 
of his embassy from the Emperor Otho to Nice- 
phorus Phocas. The Greeks making a display of 
their dress, he told them that in Lombardy the 
common people wore as good clothes as they. 
How, they said, can you procure them ? Through 
the Venetian and Amalfitan dealers, he replied, 
who gain their subsistence by selling them to us. 
The foolish Greeks were very angry, and declared 



ver, by which, as none was likely to re- 
turn, the circulating money of Europe 
was probably less in the eleventh centu- 
ry than at the subversion of the Roman 
empire; furs, which were obtained from 
the Sclavonian countries ; and arms, the 
sale of which to pagans or Saracens was 
vainly prohibited by Charlemagne and by 
the Holy See.* A more scandalous traf- 
fic, and one that still more fitly called for 
prohibitory laws, was carried on in slaves. 
It is an humiliating proof of the degra- 
dation of Christendom, that the Vene- 
tians were reduced to purchase the lux- 
uries of Asia by supplying the slave- 
market of the Saracens. t Their apology 
would perhaps have been, that these 
were purchased from their heathen neigh- 
bours ; but a slave-dealer was probably 
not very inquisitive as to the faith or ori- 
gin of his victim. This trade was not 
peculiar Jo Venice. In England it was 
very common, even after the conquest, 
to export slaves to Ireland ; till, in the 
reign of Henry II., the Irish came to a 
non- importation agreement, which put a 
stop to the practice. I 

P>om this state of degradation and 
poverty all the countries of Europe have 
recovered, with a progression in some 
respects tolerably uniform, in others 
more unequal ; and the course of their 
improvement more gradual, and less de- 

that any dealer presuming to export their line 
clothes should be flogged. — Luitprandi Opera, p. 
155, edit. Antwerp, 1640. 

* Baluz. Capitul., p. 775. One of the main ad- 
vantages which the Christian nations possessed 
over the Saracens was the coat of mail, and other 
defensive armour; so that this prohibition was 
founded upon very good political reasons. 

t Schmidt, Hist, des Allem., t. ii., p. 146. Hee- 
ren, sur rintluence des Croisades, p. 316. In Ba- 
luze we find a law of Carlornan, brother to Charle- 
magne ; Ut mancipia Christiana paganis non ven- 
dantur.— Capitularia, t. i., p. 150, vide quoque, p. 
361. 

X William of Malmsbury accuses the Anglo- 
Saxon nobility of selling their female servants, 
even when pregnant by them, as slaves to foreign- 
ers, p. 102. I hope there were not many of these 
Yaricoes ; and should not perhaps have given credit 
to an historian, rather prejudiced against the Eng- 
lish, if I had not found too much authority for the 
general practice. In the canons of a council at 
London, in 1102, we read : Let no one from hence- 
forth presume to carry on that wicked traffic, by 
which men of England have hitherto been sold like 
brute animals.— Wilkins's Concilia, t. i., p. 383. 
And Giraldus Cambrensis says that the English 
before the conquest were generally in the habit of 
selling their children and other relations to be 
slaves in Ireland, without having even the pretext 
of distress or famine, till the Irish, in a national 
synod, agreed to emancipate all the English slaves 
in the kingdom, id., p. 471. This seems to have 
been designed to take away all pretext for the 
threatened invasion of Henry II.— Lyltleton, vol. 
iii., p. 70. 



474 



EUROPE DURING THE MIDDLE AGES. 



Chap. IX. 



pendant upon conspicuous civil revolu- 
tions than their decline, affords one of 
the most interesting subjects ■into which 
a philosophical mind can inquire. The 
commencement of this restoration has 
usually been dated from about the close 
of the eleventh century ; though it is un- 
necessary to observe, that the subject 
does not admit of any thing approxima- 
ting to chronological accuracy. It may 
therefore be sometimes not improper to 
distinguish the six first of the ten centu- 
ries, which the present work embraces, 
under the appellation of the dark ages ; 
an epithet which I do not extend to the 
twelfth and three following. In tracing 
the decline of society from the sub- 
version of the Roman empire, we have 
been led, not without connexion, from ig- 
norance to superstition, from superstition 
to vice and lawlessness, and from thence 
to general rudeness and poverty* I shall 
pursue an inverted order in passing along 
the ascending scale, and class the vari- 
ous improvements which took place be- 
tween the twelfth and fifteenth centuries 
under three principal heads, as they re- 
late to the wealth, the manners, or the 
taste and learning of Europe. Different 
arrangements might probably be suggest- 
ed, equally natural and convenient ; but 
in the disposition of topics that have not 
always an unbroken connexion with each 
other, no method can be prescribed as 
absolutely more scientific than the rest. 
That which I have adopted appears to 
me as philosophical and as little liable to 
transitions as any other. 



PART II. 



Progress of Commercial Improvement in Germany, 
Flanders, and England.— In the North of Europe. 
— In the Countries upon the Mediterranean Sea. 
— Maritime Laws. — Usury. — Banking Compa- 
nies. — Progress of Refinement in Manners. — 
Domestic Architecture. — Ecclesiastical Archi- 
tecture. — State of Agriculture in England. — 
Value of Money.— Improvement of the Moral 
Character of Society — its Causes. — Police. — 
Changes in Religious Opinion.— Various Sects. 
— Chivalry — its Progress, Character, and Influ- 
ence. — Causes of the Intellectual Improvement 
of European Society. — 1. The Study of Civil 
Law. — 2. Institution of Universities— their Cele- 
brity. — Scholastic Philosophy.— 3. Cultivation 
of Modern Languages. — Proven(,-al Poets. — 
Norman Poets. — French Prose Writers. — Italian 
— early Poets in that Language. — Dante. — 
Petrarch. — English Language— its Progress. — 
Chaucer. — 4. Revival of Classical Learning. — 
Latin writers of the Twelfth Century. — Litera- 
ture of the Fourteenth Century. — Greek Litera- 
ture — its Restoration in Italy. — Invention of 
Printing. 



The geographical position of Europe 
naturally divides its maritime European 
commerce into two principal commerce, 
regions ; one comprehending those coun- 
tries which border on the Baltic, the 
German, and the Atlantic oceans, another, 
those situated around the Mediterranean 
Sea. During the four centuries which 
preceded the discovery of America, and 
especially the two former of them, this 
separation was more remarkable than at 
present, inasmuch as their intercourse, 
either by land or sea, was extremely lim- 
ited. To the first region belonged the 
Netherlands, the coasts of France, Ger- 
many, and Scandinavia, and the maritime 
districts of England. In the second we 
may class the provinces of Valencia and 
Catalonia, those of Provence and Lan- 
guedoc, and the whole of Italy. 

1. The former, or northern division, 
was first animated by the vvooiien 
woollen manufacture of Flan- manufaciure 
ders. It is not easy either to "f Flanders. 
discover the early beginnings of this, or to 
account for its rapid advancement. The 
fertility of that province and its facilities 
of interior navigation were doubtless 
necessary causes; but there must have 
been some temporary encouragement 
from the personal character of its sover- 
eigns, or other accidental circumstances. 
Several testimonies to the flourishing 
condition of Flemish manufactures occur 
in the twelfth century, and some might 
perhaps be found even earlier.* A wri- 
ter of the thirteenth asserts that all the 
world was clothed from English wool 
wrought in Flanders. f This indeed is 
an exaggerated vaunt ; but the Flemish 
stuffs were probably sold wherever the 
sea or a navigable river permitted them 
to be carried. Cologne was the chief 
trading city upon the Rhine; and its 
merchants, who had been considerable 
even under the P^mperor Henry IV., es- 
tablished a factory at London in 1320. 
The woollen manufacture, notwithstand- 
ing frequent wars and the impolitic regu- 
lations of magistrates,! continued to 

* Macpherson's Annals of Commerce, vol. i., p. 
270. Meyer ascribes the origin of Flemish trade to 
Baldwin, count of Flanders, in 958, who established 
markets at Bruges and other cities. E.xchanges 
were in that age, he says, chiefly eflfected by bar- 
ter, little money circulating in Flanders.— Annales 
Flandrici. fol. 18 (edit. 1561). 

t Matthew Westmonast. apud Macpherson's 
Annals of Commerce, vol. i., p. 415. 

X Such regulations scared away those Flemish 
weavers who brought their art into England under 
Edward III.— Macpherson, p. 467, 494, 516. Sev- 
eral years later, the magistrates of Ghent are said 
by Meyer (Annales Flandrici, fol. 156) to have im 
posed a tax on every loom. Though the seditious 



Part II.] 



STATE OF SOCIETY. 



475 



flourish in the Netherlands (for Brabant 
and Hainault shared it ni some degree 
with Flanders), until England became not 
only capable of supplying her own de- 
mand, but a rival in all the marts of 
Europe. All Christian kingdoms, and 
even the Turks themselves, says an his- 
torian of the sixteenth century, lamented 
the desperate war between the Flemish 
cities and their Count Louis, that broke 
out in 1380. For at that time Flanders 
was a market for the traders of all the 
world. Merchants from seventeen king- 
doms had their settled domiciles at Bru- 
ges, besides strangers from almost un- 
known countries who repaired thither.* 
During this war, and on all other occa- 
sions, the weavers both of Ghent and 
Bruges distinguished themselves by a 
democratical spirit, the consequence no 
doubt of their numbers and prosperity.! 
Ghent was one of the largest cities in 
Europe, and in the opinion of many the 
best situated.! But Bruges, though in 
circuit but half the former, was more 
splendid in its buildings, and the seat of 
far more trade ; being the great staple 
both of Mediterranean and northern mer- 
chandise. i^ Antwerp, which early in the 
sixteenth century drew away a large part 
of this commerce from Bruges, was not 
considerable in the preceding ages ; nor 
were the towns of Zealand and Holland 
much noted except for their fisheries, 
though those provinces acquired in the 



spirit of the weavers' company had perhaps justly 
provoked them, such a tax on their staple manu- 
facture was a piece of madness, when Enghsh 
goods were just coming into competition. 

* Terra marique mercatura, rerumque commer- 
cia et quaestus peribant. Non solum totius Europs 
mercalores, verum eliam ipsi Turcaj aliaeque sepo- 
sitae nationes ob bellum istud Flandriae magno 
afficiebantur dolore. Erat nempe Flandria totius 
prope orbis stabile mercatoribus emporium. Sep- 
temdecim regnorum negotiatores turn Brugis sua 
certa habuere domicilia ac sedes, praeter complures 
incognitas paene gentes quae undique confluebant. 
-Meyer, fol. 205, ad ann. 1385. 

■f- Meyer, Froissart, Comines. 

+ It contained, according to Ludovico Guicciar- 
dini, 35,000 houses, and the circuit of its walls was 
45,640 Roman feet. — Description des Pais Bas, p. 
350, &c. (edit. 1609). Part of this enclosure was 
not built upon. The population of Ghent is reck- 
oned by Guicciardini at 70,000, but in his time it 
had greatly declined. It is certainly, however, 
much exaggerated by earlier historians. And I en- 
tertain some doubt as to Guicciardini's estimate of 
the number of houses. If at least he was accurate, 
more than half of the city must since have been 
demolished or become uninhabited, which its pres- 
ent appearance does not indicate ; for Ghent, though 
not very flourishing, by no means presents the de- 
cay and dilapidation of an Italian town. 

<) Guicciardini, p. 202. Mem. de Comines, 1. v., 
c. 17. Meyer, fol. 354. Macpherson's Annals of 
Commerce, vol. i., p. 647, 651. 



fifteenth century some share of the 
woollen manufacture. 

For the .two first centuries after the 
conquest, our English towns, as y^^^^^ of 
has been observed in a different wool from 
place, made some forward steps England, 
towards improvement, though still very 
inferior to those of the continent. Their 
commerce was almost confined to the 
exportation of wool, the great staple 
commodity of England, upon which, more 
than any other, in its raw or manufac- 
tured state, our wealth has been founded. 
A woollen manufacture, however, indis- 
putably existed under Henry H. ;* it is 
noticed in regulations of Richard I. ; and 
by the importation of woad under John, 
it may be inferred to have still flourished. 
The disturbances of the next reign, per- 
haps, or the rapid elevation of the Flem- 
ish towns, retarded its growth ; though a 
remarkable law was passed by the Ox- 
ford parliament in 1261, prohibiting the 
export of wool and the importation of 
cloth. This, while it shows the defer- 
ence paid by the discontented barons, 
who predominated in that parhament, to 
their confederates the burghers, was evi- 
dently too premature to be enforced. 
We may infer from it, however, that 
cloths were made at home, though not 
sufficiently for the peoples' cojisump- 
tion.f 

Prohibitions of the same nature, though 
with a different object, were frequently 
imposed on the trade between England 
and Flanders by Edward I. and his son. 
As their pohtical connexions fluctuated, 
these princes gave full liberty and settle- 
ment to the Flemish merchants, or ban- 
ished them at once from the country.| 
Nothing could be more injurious to Eng- 
land than this arbitrary vacillation. The 
Flemings were in every respect our nat- 
ural allies ; but besides those connexions 
with France, the constant enemy of 
Flanders, into which both the Edwards 
occasionally fell, a mutual alienation had 
been produced by the trade of the former 
people with Scotland, a trade too lucra- 

* Blomefield, the historian of Norfolk, thinks 
that a colony of Flemings settled as early as this 
reign at Worsted, ajfvillage in that county, and im- 
mortalized its name by their manufacture. It soon 
reached Norwich, though not conspicuous till the 
reign of Edward I.— Hist, of Norfolk, vol. li. Mac- 
pherson speaks of it for the first time in 1327. 
There were several gilds of weavers in the time of 
Henry II.— Lyttleton. vol. ii., p. 174. 

t Macpherson's Annals of Commerce, vol. i., p. 
412, from Walter Hemingford. I am considerably 
indebted to this laborious and useful publication, 
which has superseded that of Anderson. 

J Rymer, t. ii., p. 32, 50, 737, 949, 965 ; t. ill., p. 
533, 1106, et alibi. 



476 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



tive to be resigned at the King of Eng- 
land's request.* An early instance of 
that conflicting selfishness of belligerants 
and neutrals, which was destined to ag- 
gravate the animosities and misfortunes 
of our own time If 

A more prosperous era began with Ed- 
Engiish ward III., the father, as he 

woollen man- may aluiost be called, of Eng- 
ufacture. jjgj^ commerce, a title not in- 
deed more glorious, but by which he may 
perhaps claim more of our gratitude than 
as the hero of Crecy. In 1331, he took 
advantage of discontents among the 
manufacturers of Flanders to invite them 
as settlers into his dominions. J They 
brought the finer manufacture of woollen 
cloths, which had been unknown in Eng- 
land. The discontents alluded to re- 
sulted from the monopolizing spirit of 
their corporations, who oppressed all ar- 
tisans without the pale of their commu- 
nity. The history of corporations brings 
home to our minds one cardinal truth, 
that political institutions have very fre- 
quently but a relative and temporary use- 
fulness, and that what forwarded im- 
provement during one part of its course, 
may prove to it in time a most pernicious 
obstacle. Corporations in England, we 
may be sure, wanted nothing of their 
usual character ; and it cost Edward no 
little trouble to protect his colonists from 
the selfishness, and from the blind na- 
tionality of the vulgar.^ The emigration 
of Flemish weavers into England contin- 
ued during this reign, and we find it men- 
tioned at intervals for more than a cen- 
tury. 

Commerce now became, next to lib- 
increase of ^rty, the leading object of par- 
Engush liament. For the greater part 
commerce, ^f our Statutes from the acces- 
sion of Edward III. bear relation to this 
subject ; not always well devised, or lib- 
eral, or consistent, but by no means 
worse in those respects than such as 
have been enacted in subsequent ages. 



* Rymer, t. iii., p. 759. A Flemish factory was 
established at Berwick, about 1286.— Macpherson. 

+ In 1295, Edward I. made masters of neutral 
ships in English ports find security not to trade 
with France.— Rymer, t. li., p. 679. 

X Rymer, t. iv., p. 591, &c. Fuller draws a no- 
table picture of the inducements held out to the 
Flemings. " Here they should feed on fat beef and 
mutton, till nothing but their fulness should stint 
their stomachs ; their beds should be good, and 
their bedfellows better, seeing the richest yeomen 
in England would not disdain to marry their 
daughters unto them, and such the English beau- 
ties that the most envious foreigners could not but 
commend them."— Fuller's Church History, quoted 
in Blomefield's Hist, of Norfolk. 

^ Rymer, t. v., p. 137, 430, 540. 



The occupation of a merchant became 
honourable ; and notwithstanding the nat- 
ural jealousy of the two classes, he was 
placed in some measure on a footing with 
landed proprietors. By the statute of 
apparel, in 37 Edw. III., merchants and 
artificers who had five hundred pounds 
value in goods and chattels might use the 
same dress as squires of one hundred 
pounds a year. And those who were 
worth more than this might dress like 
men of double that estate. Wool was 
still the principal article of export and 
source of revenue. Subsidies granted 
by every parliament upon this article 
were, on account of the scarcity of 
money, commonly taken in kind. To 
prevent evasion of this duty seems to 
liave been the principle of those multifa- 
rious regulations, which fix the staple, 
or market for wool, in certain towns, 
either in England, or, more commonly, on 
the continent. To these all wool was to 
be carried, and the tax was there col- 
lected. It is not easy, however, to com- 
prehend the drift of all the provisions re- 
lating to the staple, many of which tend 
to benefit foreign at the expense of Eng- 
lish merchants. By degrees, the expor- 
tation of woollen cloths increased so as 
to diminish that of the raw material, but 
the latter was not absolutely prohibited 
during the period under review ;* al- 
though some restrictions were imposed 
upon it by Edward IV. For a much ear- 
lier statute, in the 11th of Edward III., 
making the exportation of wool a capital 
felony, was in its terms provisional, until 
it should be otherwise ordered by the 
counci'l ; and the king almost immediate- 
ly set it aside. f 

* In 1409, woollen cloths formed great part of 
our exports, and were extensively used over Spain 
and Italy. And in 1449, English cloths having 
been prohibited by the Duke of Bjrgundy, it wa9 
enacted, that, until he should repeal this ordinance, 
no merchandise of his dominions should be admit- 
ted into England.— 27 H. VI., c. 1. The system 
of prohibiting the ipport of foreign wrought goods 
was acted upon very extensively in Edward IV. 's 
reign. 

t Stat. 11 E. III., c. 1. Blackstone says that 
transporting wool out of the kingdom, to the detri- 
ment of our staple manufacture, was forbidden at 
common law (vol. iv., c. 19), not recollecting that 
we had no staple manufactures in the ages when 
the common law was formed, and that the export 
of wool was almost the only means by which this 
country procured silver, or any other article of 
which It stood in need from the continent. In fact, 
the landholders were so far from neglecting this 
source of their wealth, that a minimum was fixed 
upon it by a statute of 1343 (repealed indeed the 
next year, 18 E. III., c. 3), below which price it 
was not to be sold ; from a laudable apprehension, 
as it seems, that foreigners were getting it too 
cheap. And this was revived in the 32d of H. VI., 



Part II.] 



STATE OF SOCIETY. 



477 



A manufacturing district, as we see in 
,, , our own country, sends out, as 

Manufac- . i • * n u^ 

lures of It were, suckers nito all its 
France and neiglibourhood. Accordingly, 
Germany. ^^^ wooUcu manufacture spread 
from Flanders along the banks of the 
Rhine, and into the northern provinces of 
France.* I am not, however, prepared 
to trace its history in these regions. In 
Germany, the privileges conceded by 
Henry V. to the free cities, and especial- 
ly to their artisans, gave a soul to indus- 
try ; though the central parts of the em- 
pire were, for many reasons, very ill cal- 
culated for commercial enterprise during 
the middle ages.f But the French towns 
were never so much emancipated from 
arbitrary power as those of Germany or 
Flanders ; and the evils of exorbitant tax- 
ation, with those produced by the Eng- 
lish wars, conspired to i-etard the advance 
of manufactures in France. That of 
linen made some progress ; but this work 
was still perhaps chiefly confined to the 
labour of female servants. | 

The manufactures of Flanders and 
Baltic PjUgland found a market not only 
trade, j^ these adjacent countries, but in 
a part of Europe which for many ages 

though the act is not printed among the statutes. 
— Rot. Pari., t. v., p. 275. The exportation of 
sheep was prohibited in 1338. — Ryiner, t. v., p. 
36 ; and by act of parliament in 1425. — 3 H. VI., c. 
2. But this did not prevent our improving the 
■\ttool of a foreign country to our own loss. It is 
worthy of notice, that English wool was superior 
to any other for fineness during these ages. Henry 
II., in his patent to the Weavers' Company, directs 
that if any weaver mingled Spanish wool with 
English, it should be burnt by the lord mayor. — 
Macpherson, p. 382. An English flock, transported 
into Spain about 1348, is said to have been the 
source of the fine Spanish wool, ibid., p. 539. But 
the superiority of English wool, even as late as 
1438, IS proved by the laws of Barcelona, forbidding 
its adulteration, p. 654. Another exportation of 
English sheep to Spain took place about 1465, in 
consequence of a commercial treaty. — Rymer, t. 
xi., p. 534, et alibi, in return, Spain supplied 
England with horses, her breed of which was reck- 
oned the best in Europe ; so that the exchange 
was tolerably fair.— Macpherson, p. 596. The best 
horses had been very dear in England, being im- 
ported from Spain and Italy, ibid. 

* Schmidt, t. iv., p. 18. 

+ Considerable woollen manufactures appear to 
have existed in Picardy about 1315. — Macpherson, 
ad annum. Capmany, t. iii., part 2, p. 151. 

% The sheriffs of Wiltshire and Sussex are di- 
rected, in 1253, to purchase for the king 1000 ells of 
fine linen, lines tela pulchrae et delicata;. This 
Macpherson supposes to be of domestic manufac- 
ture, which, however, is not demonstrable. Linen 
was made at that time in Flanders ; and as late as 
1417, the fine linen used in England was imported 
from France and the Low Countries. — Macpher- 
son, from Rymer, t. ix., p. 334. Velly's history is 
defective in giving no account of the French com- 
merce and manufactures, or at least none that is at 
ail satisfactory. 



had only been known enough to be dread- 
ed. In the middle of the eleventh cen 
tury, a native of Bremen, and a writer 
much superior to most others of his time, 
was almost entirely ignorant of the ge- 
ography of the Baltic ; doubting whether 
any one had reached Russia by that 
sea, and reckoning Esthonia and Cour- 
land among its islands.* But in one 
hundred years more, the maritime re- 
gions of Mecklenburg and Pomerania, 
inhabited by a tribe of heathen Sclavo 
nians, were subdued by some German 
princes ; and the Teutonic order some 
time afterward, having conquered Prus- 
sia, extended a line of at least compara- 
tive civilization as far as the Gulf of Fin- 
land. The first town erected on the 
coasts of the Baltic was Lubec, which 
owes its foundation to Adolphus, count 
of Holstein, in 1140. After several vi- 
cissitudes, it became independent of any 
sovereign but the emperor in the thir- 
teenth century. Hamburgh and Bremen, 
upon the other side of the Cimbric pen- 
insula, emulated the prosperity of Lubec ; 
the former city purchased independence 
of its bishop in 1225. A colony from 
Bremen founded Riga in Livonia, about 
1162. The city of Dantzic grew into im- 
portance about the end of the following 
century. Koningsberg w^as founded by 
Ottecar, king of Bohemia, in the same 

But the real importance of these cities 
is to be dated from their famous union 
into the Hanseatic confederacy. The 
origin of this is rather obscure, but it 
may certainly be nearly referred in point 
of time to the middle of the thirteenth 
century,! and accounted for by the ne- 
cessity of mutual defence, which piracy 
by sea and pillage by land had taught the 
merchants of Germany. The nobles en- 
deavoured to obstruct the formation of 
this league, which indeed was in great 
measure designed to withstand their ex- 
actions. It powerfully maintained the 
influence which the free imperial cities 
were at this time acquiring. Eighty of 
the most considerable places constituted 
the Hanseatic confederacy, divided into 
four colleges, whereof Lubec, Cologne, 
Brunswick, and Dantzic were the leading 
towns. Lubec held the chief rank, and 
became, as it were, the patriarchal see 
of the league ; whose province it was to 
preside in all general discussions for 

* Adam Bremensis, de Situ Daniae, p. 13. (El- 
zevir edit.) 

t Schmidt, t. iv,, p. 8. Macpherson, p. 392. 
The latter writer thinks they were not known by 
the name of Hanse so early. 



478 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



mercantile, political, or military purposes, 
and to carry them into execution. The 
league had four principal factories in for- 
eign parts, at London, Bruges, Bergen, 
and Novogorod ; endowed by the sover- 
eigns of those cities with considerable 
privileges, to which every merchant be- 
longing to a Hanseatic town was enti- 
tled.* In England the German guildhall 
or factory was established by concession 
of Henry III. ; and in later periods, the 
Hanse traders were favoured above many 
others in the capricious vacillations of 
our mercantile policy. f The English had 
also their factories on the Baltic coast as 
far as Prussia, and in the dominions of 
Denmark.! 

This opening of a northern market 
powerfully accelerated the growth of our 
Rapid prog- o^^n commercial opulence, es- 
resa of Eiig- pecially after the woollen man- 
iish trade, uf^ctyre had begun to thrive. 
From about the middle of the fourteenth 
century, we find continual evidences of a 
rapid increase in wealth. Thus, in 13G3, 
Picard, who had been lord mayor some 
years before, entertained Edward III. 
and the Black Prince, the kings of 
France, Scotland, and Cyprus, with many 
of the nobility, at his own house in the 
Vintry, and presented them with hand- 
some gifts. ^ Philpot, another eminent 
citizen in Richard II. 's time, when the 
trade of England was considerably an- 
noyed by privateers, hired 1000 armed 
men, and despatched them to sea, where 
they took fifteen Spanish vessels with 
their prizes. 1| We find Richard obtaining 
a great deal from private merchants and 
trading towns. In 1379 he got £5000 
from London, 1000 marks from Bristol, 
and in proportion from smaller places. 
In 1386 London gave £4000 more, and 
10,000 marks in 1397.«ff The latter sum 
was obtained also for the coronation of 
Henry VI.** Nor were the contributions 
of individuals contemptible, considering 
the high value of money. Hinde, a citi- 
zen of London, lent to Henry IV. £2000 
in 1407, and Whitiington one half of that 
sum. The merchants of the staple ad- 
vanced £4000 at the same time.ff Our 
commerce continued to be regularly and 
rapidly progressive during the fifteenth 
century. The famous Canynges of Bris- 
tol, under Henry VI. and Edward IV., 

* Pfefifel, t. i., p. 443. Schmidt, t. iv., p. 18; t. 
v., p. 512. Macpherson's Annals, vol. i., p. 693. 
t Macpherson, vol. i., passim. 
i Rymer, t. viii., p. 360. 
^ Macpherson (who quotes Stow), p. 415. 
II Walsingham, p. 211. 
IT Rymer, t. vii., p. 210, 341 ; t.viii., p. 9. 
** Id. t. X., p. 461. tt W-. t. viii., p. 483. 



had ships of 900 tons burden.* The 
trade and even the internal wealth of 
England reached so much higher a pitch 
in the reign of the last mentioned king 
than at any former period, that we may 
perceive the wars of York and Lancaster 
to have produced no very serious effect 
on national prosperity. Some battles 
were doubtless sanguinary ; but the loss 
of lives in battle is soon repaired by a 
flourishing nation ; and the devastation 
occasioned by armies was both partial 
and transitory. 

A commercial intercourse between 
these northern and southern intercourse 
regions of Europe began about with the 
the early part of the fourteenth ^Py^'opg*^ 
century, or, at most, a little 
sooner. Until, indeed, the use of tho 
magnet was thoroughly understood, and 
a competent skill in marine architecture, 
as well as navigation, acquir'ed, the Ital- 
ian merchants were scarce likely to at- 
tempt a voyage perilous in itself, and 
rendered more formidable by the imagin- 
ary difliculties which had been supposed 
to attend an expedition beyond the straits 
of Hercules. But the English, accus- 
tomed to their own rough seas, were al- 
ways more intrepid, and probably more 
skilful navigators. Though it was ex- 
tremely rare, even in the fifteenth cen- 
tury, for an English trading vessel to ap- 
pear in the Mediterranean,-^ yet a famous 



* Macpherson, p. 667. 

j Richard III., in 1485, appointed a Florentine 
merchant to be English consul at Pisa, on the 
ground that some of his subjects intended to trade 
to Italy. — Macpherson, p. 705, from Rymer. Per- 
haps we cannot positively prove the existence of a 
Mediterranean trade at an earlier time ; and even 
this instrument is not conclusive But a consid- 
erable presumption arises from two documents in 
Rymer, of the year 1412, which inform us of a 
great shipment of wool and other goods made by 
some merchants of London for the Mediterranean 
under supercargoes, whom, it bemg a new under- 
taking, the king e.xpressly recommended to the 
Genoese republic. But that people, impelled prob- 
ably by commercial jealousy, seized the vessels 
and their cargoes ; which induced the king to 
grant the owners letters of reprisal against all Ge- 
noese property. — Rymer, t. viii., p. 717, 773. 
Though it is not perhaps evident that the vessels 
were English, the circumstances render it highly 
probable. The bad success, however, of this at- 
tempt might prevent its imitation. A Greek au- 
thor, about the beginning of the fifteenth century, 
reckons the Iyy>r;vot among the nations who 
traded to a port in the Archipelago. — Gibbon, vol. 
xii., p. 52. But these enumerations are generally 
swelled by vanity or the love of exaggeration ; and 
a few English sailors on board a foreign vessel 
would justify the assertion. Benjamin of Tudela, 
a Jewish traveller, pretends that the port of Alex- 
andria, about 1160, contained vessels not only from 
England, but from Russia, and even Cracow.— 
Harris's Voyages, vol. i., p. 554. 



Part II.] 



STATE OF SOCIETY. 



470 



military armament, tliat was destined for 
the crusade of Richard I., displayed at a 
very early time the seamanship of our 
countrymen. In the reign of Edward 
II., we find mention in Rymer's collec- 
tion of Genoese ships trading to Flanders 
and England. His son was very solicit- 
ous to preserve the friendship of that op- 
ulent republic ; and it is by his letters to 
his senate, or by royal orders restoring 
ships unjustly seized, that we come by a 
knowledge of those facts which histori- 
ans neglect to relate. Pisa shared a lit- 
tle in this traffic, and Venice more consid- 
erably; but Genoa was beyond all com- 
petition at the head of Italian commerce 
in these seas during the fourteenth cen- 
tury. In the next, her general decline 
left it more open to her rival; but I 
doubt whether Venice ever maintain- 
ed so strong a connexion with England. 
Through London, and Bruges, their chief 
station in Flanders, the merchants of It- 
aly and of Spain transported oriental 
produce to the farthest parts of the north. 
The inhabitants of the Baltic coast were 
stimulated by the desire of precious lux- 
uries which they had never known ; and 
these wants, though selfish and frivolous, 
are the means by which nations acquire 
civility, and the earth is rendei-ed fruitful 
of its produce. As the carriers of this 
trade, the Hanseatic merchants resident 
in England and Flanders derived prof- 
its through which eventually, of course, 
those countries were enriched. It seems 
that the Italian vessels unloaded at the 
marts of London or Bruges, and that 
such parts of their cargoes as were in- 
tended for a more northern trade came 
there into the hands of the German mer- 
chants. In the reign of Henry VI., Eng- 
land carried on a pretty considerable traf- 
fic with the countries around the Medi- 
terranean, for whose commodities her 
wool and woollen clothes enabled her to 
pay. 

The commerce of the southern division. 
Commerce though it did not, I think, pro- 
of tlie Med- duce more extensively benefi- 
coinTnTJ! ^''^^ effects upon the progress of 
society, was both earlier and 
more splendid than that of England and 
the neighbouring countries. Besides 
Venice, which has been mentioned al- 
Amaifl ^^ady, Amalfi kept up the commer- 
cial intercourse of Christendom 
with the Saracen countries before the 
first crusade.* It was the singular fate 



* The Amaliitans are thus described by William 
of Apuha, apud Muratori, Dissert. 30. 
Urbs h33c dives opuin, populoque referta videtur, 
Nulla magis locuples argento, vestibus, auro. 



of this city to have filled up the interval 
between two periods of civilization, in 
neither of which she was destined to be 
distinguished. Scarcely known before 
the end of the sixth century, Amalfi ran 
a brilliant career, as a free and trading 
republic, which was checked by the arms 
of a conqueror in the middle of the 
twelfth. Since her subjugation by Roger, 
king of Sicily, the name of a people 
who for a while connected Europe with 
Asia has hardly been repeated, except 
for two discoveries falsely imputed to 
them, those of the Pandects and of the 
compass. 

But the dechne of Amalfi was amply 
compensated to the rest of Italy pisa, Genoa, 
by the constant elevation of Venice. 
Pisa, Genoa, and Venice in the twelfth 
and ensuing ages. The crusades led im- 
mediately to this growing prosperity of 
the commercial cities. Besides the profit 
accruing from so many naval armaments 
which they supplied, and the continual 
passage of private adventurers in their 
vessels, they w^ere enabled to open a 
more extensive channel of oriental traffic 
than had hitherto been known. These 
three Italian republics enjoyed immuni- 
ties in the Christian principalities of 
Syria ; possessing separate quarters in 
Acre, Tripoli, and other cities, where 
they were governed by their own laws 
and magistrates. Though the progress 
of commerce must, from the condition 
of European industry, have been slow, it 
was uninterrupted ; and the settlements 
in Palestine were becoming important as 
factories, a use of which Godfrey and 
Urban little dreamed, when they were 
lost through the guilt and imprudence of 
their inhabitants.* Villani laments the 
injury sustained by commerce in conse- 
quence of the capture of Acre, " situated, 
as it was, on the coast of the Mediterra- 
nean, in the centre of Syria, and, as we 
might say, of the habitable world, a haven 
for all merchandise, both from the east 
and the west, which all the nations of 
the eartli frequented for this trade. "f 



Partibus innumeris ac plurimus urbe moratur 
Nauta, maris ccelique vias aperire peritus. 
Hue et Alexandri diversa ferunlur ab urbe, 
Regis et Antiochi. Haec [eliam?] freta plurima 

transit. 
Hie Arabes, Indi, Siculi noscuntur, et Afri. 
Ha?c gens est totum prope nobihtata per orbem, 
Et mercanda ferens, et amans mercata referre. 

* The inhabitants of Acre were noted, in an age 
not very pure, for the excess of their vices. In 
1291 they plundered some of the subjects of a 
neighbouring Mahometan prince, and refusing rep 
aration, the city \vas besieged and taken by storm. 
— Muratori, ad ann. Gibbon, c. 59. 

t Villani, 1. vii-, c. 14t. 



480 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



But the loss was soon retrieved, not per- 
haps by Pisa and Genoa, but by Venice, 
who formed connexions with the Saracen 
governments, and maintained her com- 
mercial intercourse with Syria and Egypt 
by their license, though subject probably 
to heavy exactions. Sanuto, a Venetian 
author at the beginning of the fourteenth 
century, lias left a curious account of the 
Levant trade which his countrymen car- 
ried on at that time. Their imports it is 
easy to guess, and it appears tliat timber, 
brass, tin, and lead, as well as the pre- 
cious metals, were exported to Alexan- 
dria, besides oil, saffron, and some of tlie 
productions of Italy, and even wool and 
woollen cloths.* The European side of 
the account had therefore become re- 
spectable. 

The commercial cities enjoyed as great 
privileges at Constantinople as in Syria, 
and they bore an eminent part in the vi- 
cissitudes of the eastern empire. After 
the capture of Constantinople by the 
Latin crusaders, the Venetians, having 
been concerned in that conquest, became 
of course the favoured traders under the 
new dynasty : possessing their own dis- 
trict in the city, with their magistrate or 
podesta, appointed at Venice, and sub- 
ject to the parent republic. When the 
Greeks recovered the seat of their empire, 
the Genoese, who from jealousy of their 
rivals had contributed to that revolution, 
obtained similar immunities. This pow- 
erful and enterprising state, in the four- 
teenth century, sometimes the enemy of 
the Byzantine court, maintained its in- 
dependent settlement at Pera. From 
thence she spread her sails into the Eux- 
ine, and, planting a colony at Caffa in the 
Crimea, extended a line of commerce 
•with tlie interior regions of Asia, which 
even the skill and spirit of our own times 
have not yet been able to revive. f 



* Macpherson, p. 490. 

t Capmany, Meinorias Historicas, t. iii., preface, 
p. 11 ; and part 2, p. 131. His authority is Bal- 
ducci Fegalotti, a Florentine writer upon com- 
merce about 1340, whose work I have never seen. 
It apppnrs from Balducci that the route to China 
was frnrn Azoph to Astrakan, and thence by a va- 
riety of places which cannot be found in modern 
maps, to Cambalu, probably Pekin, the capital city 
of China, which he describes as bemg one hundred 
miles in circumference. The journey was of rath- 
er more than eight months, going and returning ; 
and he assures us it was perfectly .secure, not only 
for caravans, but for a single traveller with a couple 
of interpreters and a servant. The Venetians had 
also a settlement in the Crimea, and appear, by a 
passage in Petrarch's letters, to have possessed 
some of the trade through Tartary. In a letter 
written from Venice, after extolling in too rhetor- 
ical a manner the commerce of that republic, he 
mentions a particular ship that had just sailed for 



The French provinces which border on 
the Mediterranean Sea partook in the 
advantages which it offered. Not only 
Marseilles, whose trade had continued in 
a certain degree throughout the worst 
ages, but Narbonne, Nismes, and especi- 
ally Montpelier, were distinguished for 
commercial prosperity.* A still greater 
activity prevailed in Catalonia. From 
the middle of the thirteenth century (for 
we need not trace the rudiments of its 
history) Barcelona began to emulate the 
Italian cities in both the branches of na- 
val energy, war and commerce. En- 
gaged in frequent and severe hostilities 
with Genoa, and sometimes with Con- 
stantinople, while their vessels traded to 
every part of the Mediterranean, and 
even of the English channel, the Catalans 
might justly be reckoned among the first 
of maritime nations. The commerce of 
Barcelona has never since attained so 
great a height as in the fifteenth cen- 
tury. f 

The introduction of a silk manufacture 
at Palermo, by Roger Guiscard, Their man- 
in 1148, gave perhaps the ear- uiafures. 
liest impulse to the industry of Italy 
Nearly about the same time, the Genoese 
plundered two Moorish cities of Spain, 
i'rom which they derived the same art. 
In the next age, this became a staple 
manufacture of the Lombard and Tuscan 
republics, and the cultivation of mulber- 
ries was enforced by their laws. J Wool- 
len stuffs, though the trade was perhaps 
less conspicuous than that of Flanders, 
and though many of the coarser kinds 
were imported from thence, employed a 
multitude of workmen in Italy, Catalonia, 
and the south of France. i^ Among the 
trading companies into which the mid- 

the Black Sea. Et ipsa quidem Tanaim it visura, 
nostri enim maris navigatio non ultra tenditur; 
eorum vero aliqui, quos haec fert, illic iter [mstitu- 
ent] eam egressuri, nee antea sutistituri, quam 
Gauge et Caucaso superato, ad Indos atque ex- 
tremes Seres elOrientalem perveniatur Oceanum. 
En quo ardens et ine.xplebilis habendi sitis homi- 
nuin mentes rapit !— Petrarcai Opera, Senil., 1. ii., 
ep. 3, p. 760, edit. 1581. 

* Hist, de Languedoc, t. iii., p. 531 ; t. iv., p. 
517. Mem. de I'Acad. des Inscriptions, t. x.xxvii. 

t Capmany, Meinorias Historicas de Barcelona, 
t. i., part 2. See particularly p. 36. 

t Muratori, Dissert. 30. Denina, Rivoluzione 
d'ltalia, 1. xiv., c. 11. The latter writer is of opin- 
ion that mulberries were not cultivated as an im- 
portant object till after 1300, nor even to any great 
extent till after 1500; the Italian manufacturers 
buying most of their silk fioin Spain or the Levant. 

() The history of Italian states, and especially 
Florence, will speak for the first country. Cap- 
many attests the woollen manufacture of the sec- 
ond. — Mem. Hist, de Barcel., t. i., part 3, p. 7, &c. ; 
and Vaissette that of Carcasonne and its vicinity. 
—Hist, de Lang., t. iv., p. 517. 



Part If.] 



STATE OF SOCIETY. 



481 



dling ranks were distributed, tliose con- 
cerned in silk and woollens were most 
numerous and honourable.* 

A property of a natural substance, long 
Invention Overlooked even though it at- 
ofiheniar- tracted observation by a differ- 
iner'8 com- ^^^^ peculiarity, has influenced 
^^^' by its accidental discovery the 

fortunes of mankind, more than all the 
deductions of philosophy. It is perhaps 
impossible to ascertain the epoch when 
the polarity of the magnet was first 
known in Europe. The common opin- 
ion, wliich ascribes its discovery to a cit- 
izen of Amalfi in the fourteenth centu- 
ry, is undoubtedly erroneous. Guiot de 
Provins, a French poet, who lived about 
the year 1200, or, at the latest, under St. 
Louis, describes it in the most unequivo- 
cal language. James de Vitry, a bishop 
in Palestine, before the middle of the 
thirteenth century, and Guido Guinizzelli, 
an Italian poet of the same time, are 
equally explicit. The French, as well 
as Italians, claim the discovery as their 
own ; but whether it were due to either 
of these nations, or rather learned from 
their intercourse with the Saracens, is 
not easily to be ascertained.! For some 

* None were admitted to the rank of burgesses 
in the towns of Aragon who used any manual 
trade, with the exception of dealers in fine cloths. 
The woollen manufacture of Spain did not at any 
time become a considerable article of export, nor 
even supply the internal consumption, as CapmaRy 
has well shown.— Memorias Historicas, t. iii., p. 
325, et seqq., and Edinburgh Review, vol. x. 

t Boucher, the French translator of II Consolato 
del Mare, says, that Edrissi, a Saracen geographer, 
who lived about 1100, gives an account, though in 
a confused manner, of the polarity of the magnet, 
t. ii., p. 280. However, the lines of Guiot de Pro- 
vins are decisive. These are quoted in Hist. Lit- 
teraire de la France, t. ix., p. 199 ; Mem. de I'Acad. 
des [nscript., t. xxi., p. 192, and several other 
works. Guinizzelli has the following passage, in a 
canzone quoted by Ginguene, Hist. Litteraire de 
ritalie, t.i., p. 413. 

" In quelle parti sotfo tramontana, 

Sono li monti della calamita, 

Che dan virtute all' acre 

Di trarre il ferro; ma perchfe lontana, 

Vole di simil pietra aver aita, 

A far la adoperare, 

E dirizzar lo ago in ver la Stella." 
We cannot be diverted by the nonsensical theory 
these lines contain, from perceiving the positive 
testimony of the last verse to the poet's knowledge 
of the polarity of the magnet. But, if any doubt 
could remain, Tiraboschi, t. iv., p. 171, has fully 
established, from a series of passages, that this 
phenomenon was well known in the thirteenth 
century , and puts an end altogether to the preten- 
sions of Flavio Gioja, if such a person ever existed. 
See also Macpherson's Annals, p. 364 and 416. It 
is provoking to find an historian like Robertson as- 
serting without hesitation, that this citizen of Amalfi 
was the inventor of the compass, and thus accred- 
iting an error which had long before been detected. 
Hh 



time, perhaps, even this wonderful im- 
provement in the art of navigation might 
not be universally adopted by vessels 
sailing within the Mediterranean, and ac- 
customed to their old system of observa- 
tions. But when it became more estab- 
lished, it naturally inspired a more fear- 
less spirit of adventure. It was not, as 
has been mentioned, till the beginning of 
the fourteenth century, that the Genoese 
and other nations around that inland sea 
steered into the Atlantic Ocean towards 
England and Handers. This intercourse 
with the northern countries enlivened 
their trade with the Levant by the ex- 
change of productions which Spain and 
Italy do not supply, and enriched the mer- 
chants by means of whose capital the ex- 
ports of London and of Alexandria were 
conveyed into each other's harbours. 

The usual risks of navigation, and those 
incident to commercial adven- Maritime 
ture, produce a variety of ques- '^^s. 
tions in every system of jurisprudence, 
which, though always to be determined, 
as far as possible, by principles of natu- 
ral justice, must in many cases depend 
upon established customs. These cus- 
toms of maritime law were anciently re- 
duced into a code by the Rhodians, and 
the Roman emperors preserved or re- 
formed the constitutions of that republic. 
It would be hard to say how far the tra- 
dition of this early jurisprudence survived 
the decline of commerce in the darker 
ages ; but after it began to recover it- 
self, necessity suggested, or recollection 
prompted, a scheme of regulations re- 
sembling in some degree, but much more 
enlarged than those of antiquity. This 
was formed into a written code, II Con- 
solato del Mare, not much earlier, proba- 
bly, than the middle of the thirteenth 
century ; and its promulgation seems 
rather to have proceeded from the citi- 
zens of Barcelona than from those of 
Pisa or Venice, who have also claimed 
to be the first legislators of the sea.* 



It is a singular circumstance, and only to be ex- 
plained by the obstinacy with which men are apt 
to reject improvement, that the magnetic needle 
was not generally adopted in navigation till very 
long after the discovery of its properties ; and even 
after their peculiar importance had been perceiv- 
ed. The writers of the thirteenth century who 
mention the polarity of the needle, mention also its 
use in navigation ; yet Capmany has found no dis- 
tinct proof of its employment till 1403, and does not 
believe that it was frequently on board Mediterra- 
nean ships at the latter part of the preceding age. 
—Memorias Historicas, t. iii , p. 70. Perhaps 
however he has inferred too much from his nega- 
tive proof; and this subject seems open to further 

inquiry. . , , ■, j ^ 

* Boucher supposes it to have been compiled at 



482 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



Besides regulations simply mercantile, 
this system has defined the mutual rights 
of neutral and belligerant vessels, and 
thus laid the basis of the positive law 
of nations in its most important and dis- 
puted cases. The King of France and 
Count of Provence solemnly acceded to 
this maritime code, which hence acqui- 
red a binding force within the Mediterra- 
nean Sea ; and in most respects, the law 
merchant of Europe is at present con- 
formable to Its provisions. A set of reg- 
ulations, chiefly borrowed from the Con- 
solato, was compiled in France under 
the reign of Louis IX., and prevailed in 
their own country. These have been de- 
nominated the laws of Oleron, from an 
idle story that they were enacted by 
Richard I., while his expedition to the 
Holy Land lay at anchor in that island.* 
Nor was the north without its peculiar 
code of maritime jurisprudence ; name- 
ly, the ordinances of Wisbuy, a town in 
the isle of Gothland, principally compiled 
from those of Oleron, before the year 
1400, by which the Baltic traders were 
governed.! 

There was abundant reason for estab- 
Frequency lishiug among maritime nations 
of piracy, gome theory of mutual rights, 
and for securing the redress of injuries, 
as far as possible, by means of acknowl- 
edged tribunals. In that state of barba- 

Barcelona about 900 ; but his reasonings are in- 
conclusive, t. i., p. 72 ; and indeed Barcelona at that 
time was little, if at all, belter than a fishing-town. 
Some arguments might be drawn in favour of Pisa 
from the expressions of Henry IV.'s charter grant- 
ed to that city in 1081. Consuetudines, quas ha- 
bent de mari, sic iis observabimussicut illorum est 
consuetudo. — Muratori, Dissert. 45. Giannone 
seems to think the collection was compiled about 
the reign of Louis IX., 1. xi., c. 6. Capmany, the 
last Spanish editor, whose authority ought perhaps 
to outweigh every other, asserts, and seems to 
prove them to have been enacted by the mercantile 
magistrates of Barcelona, under the reign of James 
the Conqueror, which is much the same period. — 
(Codigo de las Costrumbres maritimas de Barcelo- 
na, Madrid, 1791.) But, by whatever nation they 
were reduced into their present form, these laws 
were certainly the ancient and established usages 
of the Mediterranean states ; and Pisa may very 
probably have taken a great share in first practi- 
sing what a century or two afterward was render- 
ed more precise at Barcelona. 

* Macpherson, p. 358. Boucher supposes them 
tq.be registers of actual decisions. 

t I have only the authority of Boucher for re- 
ferring the Ordinances of Wisbuy to the year 
1400. Beckman imagines them to be older than 
those of Oleron. But Wisbuy was not enclosed by 
a wall till 1288, a proof that it could not have been 
previously a town of much importance. It flour- 
ished chiefly in the first part of the fourteenth cen- 
tury, and was at that time an independent repub- 
lic ; but fell under the yoke of Denmark before 
the end of the same age. 



rous anarchy which so long resisted the 
coercive authority of civil magistrates, 
the sea held out even more temptation 
and more impunity than the land ; and 
when the laws had regained their sover- 
eignty, and neither robbery nor private 
warfare was any longer tolerated, there 
remained that great common of mankind, 
unclaimed by any king, and the liberty 
of the sea was another name for the se- 
curity of plunderers. A pirate, in a well- 
armed, quick-sailing vessel, must feel, I 
suppose, the enjoyments of his exemp- 
tion from control more exquisitely than 
any other freebooter ; and darting along 
the bosom of the ocean, under the 
impartial radiance of the heavens, may 
deride the dark concealments and hur- 
ried flights of the forest robber. His 
occupation is indeed extinguished by 
the civilization of later ages, or con- 
fined to distant climates. But in the 
thirteenth and fourteenth centuries, a 
rich vessel was never secure from at- 
tack ; and neither restitution nor punish- 
ment of the criminals was to be obtained 
from governments who sometimes fear- 
ed the plunderer and sometimes con- 
nived at the off'ence.* Mere piracy, 
however, was not the only danger. The 
maritiiue towns of Flanders, France, and 
England, like the free republics of Italy, 
prosecuted their own quarrels b)' arms, 
without asking the leave of their respect- 
ive sovereigns. This practice, Law of 
exactly analogous to that of pri- ■■''P"sais- 
vatfc war in the feudal system, more than 
once involved the kings of France and 
England in hostility. f But where the 
quarrel did not proceed to such a length 
as absolutely to engage two opposite 
towns, a modification of this ancient 
right of revenge fomied part of the regu- 
lar law of nations, under the name of re- 
prisals. Whoever was plundered or in- 
jured by the inhabitants of another town 
obtained authority from his own magis- 
trates to seize the property of any other 
person belonging to it, until his loss 
should be compensated. This law of 



* Hugh Despenser seized a Genoese vessel val- 
ued at 14,300 marks, for which no restitution was 
ever made. — Rymer, t. iv., p. 701. Macpherson, 
A. D. 1336. 

t The Cinque Ports and other trading towns of 
England were in a state of constant hostility with 
their opposite neighbours during the reigns of Ed- 
ward I. and II. One might quote almost half the 
instruments in Rymer in proof of these conflicts, 
and of those with the mariners of Norway and Den- 
mark. Sometimes mutual envy produced frays 
between different English towns. Thus, in 1254, 
the Winchelsea mariners attacked a Yarmouth 
galley, and killed some of her men. — Matt. Paris, 
apud Macpherson 



Pakt II.] 



STATE OF SOCIETY. 



483 



reprisal was rxOt confined to maritime 
places. It prevailed in Lombardy, and 
probably in the German cities. Thus, if 
a citizen of Modena was robbed by a Bo- 
lognese, he complained to the magis- 
trates of the former city, who represent- 
ed the case to those of Bologna, demand- 
ing redress. If this were not immedi- 
ately granted, letters of reprisals were 
issued, to plunder the territory of Bo- 
logna till the injured party should be re- 
imbursed by sale of the spoil.* In the 
laws of Marseilles it is declared, " If a 
foreigner take any thing from a citizen 
of Marseilles, and he who has jurisdic- 
tion over the said debtor or unjust taker 
does not cause right to be done in the 
isame, the rector or consuls, at the peti- 
tion of the said citizen, shall grant him 
reprisals upon all the goods of the said 
debtor or unjust taker, and also upon the 
goods of others, who are under the juris- 
diction of him who ought to do justice, 
and would not, to the said citizen of Mar- 
seilles."! f]dward III. remonstrates, in 
an instrument published by Rymer, 
against letters of marque granted by the 
King of Aragon to one Berenger de la 
Tone, who had been robbed by an Eng- 
lish pirate of £2000 ; alleging that, inas- 
much as he had always been ready to 
give redress to the party, it seemed to 
his counsellors that there was no just 
cause for reprisals upon the king's or his 
subjects' property.^ This passage is so 
far curious, as it asserts the existence of 
a customary law of nations, the knowl- 
edge of which was already a sort of 
learning. Sir E. Coke speaks of this 
right of private reprisals as if it still ex- 
isted ;^ and, in fact, there are instances 
of granting such letters as late as the 
reign of Charles the First. 

A practice founded on the same prin- 
Liabiiityof ciplcs as reprisal, though rather 
aliens for less violent, was that of attach- 
each other's jj^g [[y^ goods or pcrsous of res- 
ident foreigners for the debts of 
their countrymen. This indeed, in Eng- 
land, was not confined to foreigners until 
the statute of Westminster I., c. 23, which 
enacts that " no stranger who is of this 
realm shall be distrained in any town or 
market for a debt wherein he is neither 

* Muratori, Dissert. 53. 

■f- Du Cange, voc. Laudum. 

X Rymer, t. iv., p. 576. Videtur sapientibus et 
peritis, quod causa, de jure, non subfuit marcham 
seu repnsaliam in nostris, seu subditorum nostro- 
rum, bonis concedendi. See too a case of neutral 
goods on board an enenoy's vessel claimed by the 
owners, and a legal distinction taken in favour of 
the captors, t. vi., p. 14. 

6 27 E. III., Stat, ii., c. 17. 2 Inst., p. 205, 

Hh2 



principal nor surety." Henry III. had 
previously granted a charter to the bur- 
gesses of Lubec, that they shoidd not be 
arrested for the debt of any of their coun- 
trymen, unless the magistrates of Lubec 
neglected to compel payment.* But by 
a variety of grants from Edward II., the 
privileges of English subjects under the 
statute of Westminster were extended to 
most foreign nations. f This unjust re- 
sponsibility had not been confined to civil 
cases. One of a company of Italian mer- 
chants, the Spini, having killed a man, 
the officers of justice seized the bodies 
and effects of all the rest.J 

If, under all these obstacles, whether 
created by barbarous manners, Great prof- 
by national prejudice, or by the «sof trade, 
fraudulent and arbitrary measures of prin- 
ces, the merchants of different countries 
became so opulent as almost to rival the 
ancient nobility, it must be ascribed to 
the greatness of their commercial profits. 
The trading companies possessed either 
a positive or a virtual monopoly, and held 
the keys of those eastern regions, for the 
luxuries of which the progressive refine- 
ment of manners produced an increasing 
demand. It is not easy to determine the 
average rate of profit;^ but we know that 
the interest of money was exceed- j^j,j high 
ingly high throughout the middle rate of 
ages. At Verona, in 1228, it was '"'erest. 
fixed by law at twelve and a half per 
cent. ; at Modena, in 1270, it seems to 
have been as high as twenty. || The re- 
public of Genoa, towards the end of the 
fourteenth century, when Italy had grown 
wealthy, paid only from seven to ten per 
cent, to her creditors.^ But in France 
and England the rate was far more op- 
pressive. An ordinance of Philip the 
Fair, in 1311, allows twenty per cent, af- 
ter the first year of the loan.** Under 
Henry HI., according to Matthew Paris, 
the debtor paid ten per cent, every two 
months,!! but this is absolutely incredible 



» Rymer, t. i., p. 839. 

t Idem, t. iii., p. 458, 647, 678, et infra. See too 
the ordinances of the staple, in 27 Edw. III., which 
conlirm this among other privileges, and contain 
manifold evidence of the regard paid to commerce 
in that reign. 

t Rymer, t. ii., p. 891. Madox, Hist. Exche- 
quer, c. xxii., s. 7. 

1^ In the remarkable speech of the Doge Moceni- 
go, quoted in another place, p. 177, the annual 
profit made by Venice on her mercantile capital is 
reckoned at forty per cent. 

II Muratori, Dissert. 16. 

IT Bizarn Hist. Genuens, p. 797. The rate of dis- 
count on bills, which may not have exactly cor- 
responded to the average annual interest of money, 
was ten per cent, at Barcelona in 1435.— Cap- 
many, t. i., p. 209. 

** Du Cange, v. Usura. tf Muratori, Diss. 16. 



484 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IS. 



as a general practice. This was not 
merely owing to scarcity of money, but 
to the discouragement which a strange 
prejudice opposed to one of the most use- 
ful and legitimate branches of commerce. 
Usury, or lending money for profit, was 
treated as a crime by the theologians of 
the middle ages ; and though the super- 
stition has been eradicated, some part of 
the prejudice remains in our legislation, 
jiciey This trade in money, and indeed 
dealings of a great part of inland trade in 
theJewa. ggjjeral, had originally fallen to 
the Jews, who were noted for their usury 
so early as the sixth century.* For sev- 
eral subsequent ages they continued to 
employ their capital and industry to the 
same advantage, with little molestation 
from the clergy, who always tolerated 
their avowed and national infidelity, and 
often with some encouragement from 
princes. In the twelfth century we find 
them not only possessed of landed prop- 
erty in Languedoc, and cultivating the 
studies of medicine and Rabbinical liter- 
ature in their own academy at Montpe- 
lier, under the protection of the Count of 
Toulouse, but invested with civil offices. f 
Raymond Roger, viscount of Carcas- 
sonne, directs a writ " to his bailiff's 
Christian and Jewish. "| It was one of 
the conditions imposed by the church on 
the Count of Toulouse, that he should al- 
low no Jews to possess magistracy in his 
dominions.^ In Spain they were placed 
by some of the municipal laws on the 
footing of Christians, with respect to the 
composition for their lives, and seem in 
no other European country to have been 
so numerous or considerable. || The dili- 
gence and expertness of this people in all 
pecuniary dealings recommended them 
to princes who were solicitous about the 
improvement of their revenue. We find 
an article in the general charter of priv- 
ileges granted by Peter III. of Aragon, in 
1283, that no Jew should hold the office 
of a bayle or judge. And two kings of 
Castile, Alonzo XI. and Peter the Cruel, 
mcurred much odium by employing Jew- 
ish ministers in their treasury. But, in 
other parts of Europe, their condition 
had, before that time, begun to change 
for the worse ; partly from the fanatical 
spirit of the crusades, which prompted 
the populace to massacre, and partly 
from the jealousy which their opulence 
excited. Kings, in order to gain money 
and popularity at once, abolished the 



* Greg. Turon., 1. iv. 

+ Hisi. de Languedoc, t. ii., p. 517 ; t. iii., p. 53L 
t Id., t. ill., p. 121. <) Id, p. 1C3. 

U Marina, Ensayo Historico-Critico, p. 143. 



debts due to the children of Israel, ex- 
cept a part which they retained as the 
price of their bounty. One is at a loss 
to conceive the process of reasoning in 
an ordinance of St. Louis, where, " for 
the salvation of his own soul and those 
of his ancestors, he releases to all Chris- 
tians a third part of what was owing 
by them to Jews."* Not content with 
such edicts, the kings of France some- 
times banished the whole nation from 
their dominions, seizing their elTects at 
the same time ; and a season of alterna- 
tive severity and toleration continued till 
under Charles VI. they were finally ex- 
pelled from the kingdom, where they 
never afterward possessed any li^gal set- 
tlement. f In England they were not so 
harshly treated ; but they became less 
remarkable for riches after the thirteenth 
century. This decline of the Jews was 
owing to the transference of their trade 
in money to other hands. In the early 
part of the thirteenth century the mer- 
chants of Lombardy and of the south of 
France| took up the business of remit- 
ting money by bills of exchange,i^ and 
of making profit upon loans. The utility 
of this was found so great, especially by 
the Italian clergy, who thus in an easy 
manner drew the income of their trans- 
alpine benefices, that, in spite of much 
obloquy, the Lombard usurers established 
themselves in every country ; and the 
general progi-ess of commerce wore off 
the bigotry that had obstructed their 
reception. A distinction was made be- 
tween moderate and exorbitant interest ; 
and though the casuists did not acquiesce 



* Martenne, Thesaurus Anecdotornm, t. i., p. 

984. 

t Velly, t. iv., p, 136. 

t The city of Cahors, in Qiiercy, the modern 
department of the Lot, produced a tribe of money- 
dealers. The Caursini are almost as often noticed 
as the Lombards. — See the article in Du Cange. 
In Lombardy, Asti, a city of no great note in other 
respects, was famous for the same department of 
commerce. 

^ There were three species of paper credit in 
the dealings of merchants: 1. General letters of 
credit, not directed to any one, which are not un- 
common in the Levant ; 2. Orders to pay money 
to a particular person ; 3. Bills of exchange regu- 
larly negotiable. — Boucher, t. ii., p. 621. Instances 
of the first are mentioned by Macpherson a+jout 
1200, p. 367. The second species was introduced 
by the Jews about 1183 (Capmany, t. i., p. 297), 
but it may be doubtful whether the last stage of 
the progress was reached nearly so soon. An in- 
strument in Kymer, however, of the year 1361 (t. 
vi,, p. 495), mentions literas cambitoriae, which seem 
to have been negotiable bills ; and by 1400 they 
were drawn in sets, and worded exactly as at 
present.— Macpherson, p. 614, and Beckman, His- 
tory of Inventions, vol. iii., p. 430, give from Cap- 
many an actual precedent of a bill dated in 1404. 



Part II.] 



STATE OF SOCIETY. 



485 



in this legal regulation, yet it satisfied, 
even in superstitious times, the conscien- 
ces of provident traders.* The Italian 
bankers were frequently allowed to farm 
the customs in England, as a security, 
perhaps, for loans which were not very 
punctually repaid. f In 1345, the Bardi 
at Florence, the greatest company in 
Italy, became bankrupt, Edward III. 
owing them in principal and interest 
900,000 gold florins. Another, the Pe- 
ruzzi, failed at the same time, being 
creditors to Edward for 600,000 florins. 
The King of Sicily owed 100,000 florins 
to each of these bankers. Their failure 
involved, of course, a multitude of Flor- 
entine citizens, and was a heavy misfor- 
tune to the state. J 

The earliest bank of deposite, institu- 
Danks of ^^^ ^^^ ^^^^ accommodation of pri- 
Genoaand vate merchants, is said to have 
others. beejj jy^at ^f Barcelona, in 1401.^ 
The banks of Venice and Genoa were 
of a diflferent description. Although the 
former of these two has the advantage 
of greater antiquity, having been formed, 
as we are told, in the twelfth century, 
yet its early history is not so clear as 
that of Genoa, nor its political impor- 
tance so remarkable, however similar 
might be its origin. H During the wars 
of Genoa in the fourteenth centurj^ she 
had borrowed large sums of private citi- 

* Usury was looked upon with horror by our 
English divines long after the reformation. Fleury, 
ill his Institutions au Droit Ecclesiastique, t. ii., p. 
129, has shown the subterfuges to which men had 
recourse in order to evade this prohibition. It is 
an unhappy truth, that great part of the attention 
devoted to the best of sciences, ethics and juris- 
prudence, has been employed to weaken principles 
that ought never to have been acknowledged. 

One species of usury, and that of the highest im- 
portance to commerce, was always permitted, on 
account of the risk that attended it. This was 
marine ensurance, which could not have existed 
until money was considered in itself as a source 
of profit. The earliest regulations on the subject 
of ensurance are those of Barcelona in 1433 ; but 
the practice was, of course, earlier than these, 
though not of great antiquity. It is not mentioned 
in the Consolato del Mare, nor in any of the Han- 
seatic laws of the fourteenth century. — Beckinan, 
vol. i., p. 388. This author, not being aware of the 
Barcelonese laws on this subject published by 
Capmany, supposes the first provisions regulating 
marine assurance to have been made at Florence 
in 1523. 

t Macpherson, p. 487, et alibi. They had prob- 
ably excellent bargains : in 1329 the Bardi farmed 
all the customs in England for 20/. a day. But, 
in 1282, the customs had produced 841 H., and half 
a century of great improvement had elapsed. 

J Viliani, I. xii., c. 55, 87. He calls these two 
banking-houses the pillars which sustained great 
part of the commerce of Christendom. 

<) Capmany, t. i., p. 213. 

II Macpherson, p. 341, from Sanuto. The bank 
of Venice is referred to 1171. 



I zens, to whom the revenues were pledged 
I for repayment. The republic of Florence 
had set a recent, though not a very en- 
couraging example of a public loan, to 
I defray the expense of her war against 
Mastino della Scala, in 1336. The chief 
mercantile firms, as well as individual 
citizens, furnished money on an assign- 
ment of the taxes, receiving fifteen per 
cent, interest ; which appears to have 
been above the rate of private usury.* 
The state was not unreasonably consid- 
ered a worse debtor than some of her 
citizens ; for in a few years these loans 
were consolidated into a general fund, or 
monte, with some deduction from the cap- 
ital, and a great diminution of interest; 
so that an original debt of one hundred 
florins sold only for twenty-five. f But 
I have not found that these creditors 
formed at Florence a corporate body, or 
took any part, as such, in the afl'airs of 
the republic. The case was diff'erent at 
Genoa. As a security at least for their 
interest, the subscribers to public loans 
were permitted to receive the produce 
of the taxes by their own collectors, 
paying the excess into the treasury. 
The number and distinct classes of these 
subscribers becoming at length inconve- 
nient, they were formed about the year 
1407 into a single corporation, called the 
Bank of St. George, which was from 
that time the sole national creditor and 
mortgagee. The government of this was 
intrusted to eight protectors. It soon 
became almost independent of the state. 
Every senator, on his admission, swore 
to maintain the privileges of the bank, 
which Avere confirmed by the pope, and 
even by the emperor. The bank inter- 
posed its advice in every measure of 
government, and generally, as is admit- 
ted, to the public advantage. It equip- 
ped armaments at its own expense, one 
of which subdued the Island of Corsica ; 
and this acquisition, like those of our 
great Indian corporation, was long sub- 
ject to a company of merchants, without 
any interference of the mother country.^ 
The increasing wealth of Europe, 
whether derived from internal increase of 
improvement or foreign com- domesuc ex- 
merce, displayed itself in more P«'»i""r«- 
expensive consumption, and greater re- 
finements of domestic life. But these 
efl'ects were for a long time very grad- 
ual, each generation making a few steps 



* G. Villani, 1. xi., c. 49. 

t Matt. Villani, p. 227 (in Muratori, Script. Rer. 
Ital., t. xiv.). 

X Bizarri Hist. Genuens., p. 797 (Antwerp. 1579) 
Machiavelli, Storia Fiorentina, t. viii. 



486 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



in the progress, which are hardly discern- 
ible except by an attentive inquirer. It 
is not till the latter half of the thirteenth 
century that an accelerated impulse ap- 
pears to be given to society. The just 
government and suppression of disorder 
under St. Louis, and the peaceful temper 
of his brother Alfonzo, count of Toulouse 
and Poitou, gave France leisure to avail 
herself of her admirable fertility. Eng- 
land, that to a soil not perhaps inferior 
to that of France, united the inestimable 
advantage of an insular position, and was 
invigorated, above all, by her free consti- 
tution, and the steady industriousness of 
her people, rose with a pretty uniform 
motion from the time of Edward I. It- 
aly, though the better days of freedom 
had passed away in most of her repub- 
lics, made a rapid transition from simpli- 
city to refinement. " In those times,'' 
says a writer about the year 1300, speak- 
ing of the age of Frederick II., "the 
manners of the Italians were rude. A 
man and his wife ate off the same plate. 
There was no wooden-handled knives, 
nor more than one or two drinking-cups 
in the house. Candles of wax or tallow 
were unknown : a servant held a torch 
during supper. The clothes of men 
were of leather unlined : scarcely any 
gold or silver was seen on their dress. 
The common people ate flesh but three 
times a week, and kept their cold meat 
for supper. Many did not drink wine in 
summer. A small stock of corn seemed 
riches. The portions of women were 
small ; their dress, even after marriage, 
was simple. The pride of men was to 
be well provided with arms and horses ; 
that of the nobiUty to have lofty towers, 
of which all the cities in Italy were full. 
But now^ frugality has been changed for 
sumptuousness ; every thing exquisite is 
sought after in dress : gold, silver, pearls, 
silks, and rich furs. Foreign wines and 
rich meats are required. Hence usury, 
rapine, fraud, tyranny,"* &c. This pas- 
sage is supported by other testimonies 
nearly of the same time. The conquest 
of Naples by Charles of Anjou, in 1266, 

* Ricobaldus Ferrarensis, apud Murat., Dissert. 
23. Francisc. Pippinus, ihidem. Muratori en- 
deavours to extenuate the authority of this passage, 
on account of some more ancient writers who com- 
plain of the luxury of their times, and of some par- 
ticular instances of magnificence and expense. But 
Ricobaldi alludes, as Muratori himself admits, to the 
mode of living in the middle ranks, and not to that 
of courts, which in all ages might occasionally dis- 
play considerable splendour. I see nothing to 
weaken so explicit a testimony of a contemporary, 
which in fact is confirmed by many writers of the 
next age, who, according to the practice of Italian 
chroniclers, have copied it as their own. 



seems to have been the epoch of increas- 
ing luxury throughout Italy. His Pro- 
ventral knights with their plumed helmets 
and golden collars, the chariot of his 
queen covered with blue velvet, and 
sprinkled with lilies of gold, astonished 
the citizens of Naples.* Provence had 
enjoyed a long tranquillity, the natural 
source of luxurious magnificence ; and 
Italy, now liberated from the yoke of the 
empire, soon reaped the same fruit of a 
condition more easy and peaceful than 
had been her lot for several ages. Dante 
speaks of the change of manners at Flor- 
ence, from simplicity and virtue to re- 
finement and dissoluteness, in terms very 
nearly similar to those quoted above. f 

Throughout the fourteenth century, 
there continued to be a rapid but steady 
progression in England, of what we may 
denominate elegance, improvement, or 
luxury ; and if this was for a time sus- 
pended in France, it must be ascribed to 
the unusual calamities which befell that 
country under Philip of Valois and his 
son. Just before the breaking out of the 
English wars, an excessive fondness for 
dress is said to have distinguished not 
only the higher ranks, but the burghers, 
whose foolish emulation at least indicates 
their easy circumstances. J Modes of 
dress hardly perhaps deserve our notice 
on their own account ; yet, so far as their 
universal prevalence was a symptom of 
diffused wealth, we should not overlook 
either the invectives bestowed by the 
clergy on the fantastic extravagances of 
fashion, or the sumptuary laws by which 
it was endeavoured to restrain them. 

The principle of sumptuary laws was 
partly derived from the small sumptuary 
republics of antiquity, which 'avvs. 
might perhaps require that security for 
public spirit and equal rights ; partly 
from the austere and injudicious theory 



* Murat., Dissert. 23. 
t Bellincion Berti vid' io andar cinto 
Di cuojo e d'osso, e venir dallo specchio 
La donna sua senza '1 viso dipinto. 
E vidi quel di Nerli, e quel del Vecchio 
Esser contenlialla pelle scoverta, 
E sue donne al fuso ed al pennechio. 

Paradis., canto xv. 
See too the rest of this canto. But this is put 
in the mouth of Cacciaguida, the poet's ancestor, 
who lived in the former half of the twelfth century. 
The change, however, was probably subsequent to 
1250, when the times of weajth and turbulence be- 
gan at Florence. 

J Velly. t. viii., p. 352. The second continuator 
of Nangis vehemently inveighs against the long 
beards and short breeches of his age ; after the in- 
troduction of which novelties, he judiciously ob- 
serves, the French were much more disposed to run 
away from their enemies than before. — Spicile- 
giuin, t. ui., p. 105. 



Part II] 



STATE OF SOCIETY. 



487 



of religion disseminated by the clergy. 
These prejudices united to render all in- 
crease of general comforts odious under 
the name of luxury ; and a third motive, 
more powerful than either, the jealousy 
with which the great regard any thing 
like imitation in those beneath them, co- 
operated to produce a sort of restrictive 
code in the laws of Europe. Some of 
these regulations are niore ancient ; but 
the chief part were enacted, both in 
France and England, during the four- 
teenth century ; extending to expenses 
of the table as well as apparel. The 
first statute of this description in our own 
country was, however, repealed the next 
year ;* and subsequent provisions were 
entirely disregarded by a nation which 
valued hberty and commerce too much 
to obey laws conceived in a spirit hostile 
to both. Laws indeed designed by those 
governments to restrain the extravagance 
of their subjects, may well justify the se- 
vere indignation which Adam Smith has 
poured upon all such interference with 
private expenditure. The kings of France 
and England were undoubtedly more 
egregious spendthrifts than any others 
in their dominions ; and contributed far 
more by their love of pageantry to excite 
a taste for dissipation in their people, 
than by their ordinances to repress it. 

Mussus, an historian of Placenlia, has 
Domestic ^^^^ ^ pretty copious account of 
manners the prevailing manners among 
ofitaiy. }^jg countrymen about 1388, and 
expressl)' contrasts their more luxurious 
living with the style of their ancestors 
seventy years before ; when, as we have 
seen, they had already made considera- 
ble steps towards refinement. This pas- 
sage is highly interesting; because it 
shows the regular tenour of domestic 
economy in an Italian city, rather than 
a mere display of individual magnifi- 
cence, as in most of the facts collected 
by our own and the French antiquaries. 
But it is much too long for insertion in 
this place. f No other country, perhaps, 
could exhibit so fair a picture of middle 
life : in France, the burghers and even 
the inferior gentry were for the most part 



* 37 E. III. Rep. 38 E. III. Several other 
otatutes of a similar nature were passed in this 
and the ensuing reign. In France there were 
sumptuary laws as old as Charlemagne, prohibiting 
or taxing the use of furs ; but the first extensive 
regulation was un<ier Philip the Fair. — Velly, t. 
vii., p. C4 ; t. xi., p. 190. These attempts to re- 
strain what cannot be restrained continued even 
down to 1700.— De la Mare, Traite de la Police, t 
i., 1. iii. 

t Muratori, Antichita Italiane, Dissert. 23, t. i., 
p. 325. 



in a state of poverty at this period, which 
they concealed by an afiectation of orna- 
ment ; while our English yeomanry and 
tradesmen were more anxious to invigo- 
rate their bodies by a generous diet, than 
to dwell in well-furnished houses, or to 
find comfort in cleanliness and elegance.* 
The German cities, however, had acqui- 
red with liberty the spirit of improvement 
and industry. From the time that Henry 
V. admitted their artisans to the privi- 
leges of free burghers, they became more 
and more prosperous ;t while the steadi- 
ness and frugality of the German char- 
acter compensated for some disadvanta- 
ges arising out of their inland situation. 
Spire, Nuremberg, Ratisbon, and Augs- 
burg, were not indeed like the rich mar- 
kets of London and Bruges, nor could 
their burghers rival the princely mer- 
chants of Italy ; but they enjoyed the 
blessings of competence diff'used over a 
large class of industrious freemen; and 
in the fifteenth century, one of the poli- 
test Italians could extol their splendid 
and well-furnished dwellings, their rich 
apparel, their easy and affluent mode of 
living, the security of their rights, and just 
equality of their laws.J 

* These English, said the Spaniards who came 
over with Philip II., have their houses made of 
sticks and dirt, but they fare commonly so well as 
the king. — Harrison's Description of Britain, pre- 
fixed to Holmgshed, vol. i., p. 315 (edit. 1807). 

t PfeflTel, t. 1., p. 293. 

t .^neas Sylvius, de Moribus Germanorum 
This treatise is an amplified panegyric upon Ger- 
many, and contains several curious passages : they 
must be taken perhaps with some allowance ; for 
the drift of the whole is to persuade the Germans 
that so rich and noble a country could afford a lit- 
tle money for the poor pope. Civitates quas vocant 
liberas, curn, Imperatori solum subjiciuntur, cujus 
jugum est instar libertatis ; nee profecto usquam 
gentium tanta libertas est, quanta fruuntur hujus- 
cemodi civitates. Nam populi quos Itali vocant 
liberos, hi potissimum serviunt, sive Venetias in- 
spectes, sive Florentiam aut Caenas, in quibus ci- 
ves, prater paucos qui reliquos ducunt, loco man- 
cipiorum habentur. Cum nee rebus suis uti, utli- 
bet, vel fari quse velint, et gravissimis opprimuntur 
pecuniarum exactionibus. Apud Germanos omnia 
laEta sunt, omnia jucunda ; nemo suis privatur 
bonis. Salva cuique sua haereditas est, nulli nisi 
nocenti magistratus nocent. Nee apud eos factio- 
nes sicut apud Italas urbes grassantur. Sunt au- 
tem supra centum civitates hac libertate firuentes, 
p. 1058. 

In another part of his work p. 719, he gives a 
specious account of Vienna. The houses, he says, 
had glass windows and iron doors. Fenestras un- 
dique vitrea; perlucent, et oslia plenimque ferrea. 
In domibus multa et munda supellex. Alta; doinus 
magnificaeque visuntur. Unuin id dedecori est, 
quod tecta plerumque tigno contegunt, pauca la- 
tere. Caetera sditicia muro lapideo consistunt. 
Pictae domus ct cxterius et interius splendent. Ci 
vitatis populus 50,000 comnuniicnnlium creditur. I 
suppose this gives at least double ior the total pop- 
ulation. He proceeds to represent the manners of 



488 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



No chapter in the history of national 
manners would illustrate so well, if duly 
executed, the progress of social life, as 
Civil archi- that dedicated to domestic archi- 
tecture, lecture. The fashions of dress 
and of amusements are generally capri- 
cious and irreducible to rule ; but every 
change in the dwellings of mankind, from 
the rudest wooden cabin to the stately 
mansion, has been dictated by some prin- 
ciple of convenience, neatness, comfort, 
or magnificence. Yet this most interest- 
ing field of research has been less beaten 
by our antiquaries than others compar- 
atively barren. I do not pretend to a 
complete knowledge of what has been 
written by these learned inquirers ; but I 
can only name one book in which the 
civil architecture of our ancestors hud 
been sketched, loosely indeed, but with 
a superior hand ; and another in which it 
is partially noticed. I mean by the first, 
a chapter in the Appendix to Dr. Whit- 
aker's History of Whalley ; and by the 
second, Mr. King's Essays on ancient 
Castles in the Archaeologia.* Of these 
I shall make free use in the following 
paragraphs. 

The most ancient buildings which we 
can trace in this island, after the depar- 
ture of the Romans, were circular tow- 
ers of no great size, whereof many re- 
main in Scotland ; erected either on a 
natural eminence, or on an artificial 
mound of earth. Such are Conisborough 
Castle in Yorkshire, and Castleton in 
Derbyshire, built perhaps before the con- 
quest. f To the lower chambers of those 
gloomy keeps there was no admission of 
light or air, except through long narrow 
loopholes and an aperture in the roof. 
Regular windows were made in the upper 

the city in a less favourable point of view, charging 
the citizens with gluttony and libertinism, the no- 
bility with oppression, the judges with corruption, 
&c. Vienna probably had the vices of a flourishing 
city ; but the love of amplification in so rhetorical 
a writer as .lEneas Sylvius weakens the value of 
bis testimony, on whichever side it is given. 

* Vols. iv. and vi. 

t Mr. Lysons refers Castleton to the age of Will- 
iam the Conqueror, but without giving any reasons. 
— Lysons's Derbyshire, p. ccx.xxvi. Mr. King had 
satisfied himself that it was built during the Hep- 
tarchy, and even before the conversion of the Sax- 
ons to Christianity ; but in this he gave the reins, 
as usual, to his imagination, which as much ex- 
ceeded his learning as the latter did his judgment. 
Conisborough should seem, by the name, to have 
been a royal residence, which it certainly never 
was after the conquest. But if the engravings of 
the decorative parts in Archaeologia, vol. vi., p. 244, 
are not remarkably inaccurate, the architecture is 
too elegant for the Danes, much more for the un- 
converted Saxons. Both these castles are enclo- 
sed by a court orballium, with a fortified entrance, 
like those erected by the Normans. 



apartments. Were it not for the vast 
thickness of the walls, and some marks 
of attention both to convenience and dec- 
oration in these structures, we might be 
induced to consider them as rather in- 
tended for security during the transient 
inroad of an enemy, than for a chieftain's 
usual residence. They bear a close re- 
semblance, except by their circular form 
and more insulated situation, to the peels, 
or square towers of three or four sto- 
ries, which are still found contiguous to 
ancient mansion-houses, themselves far 
more ancient, in the northern counties,* 
and seem to have been designed for 
places of refuge. 

In course of time, the barons who 
owned these castles began to covet a 
more comfortable dwelling. The keep 
was either much enlarged, or altogether 
relinquished as a place of residence, ex- 
cept in time of siege ; while more conve- 
nient apartments were sometimes erect- 
ed in the tower of entrance, over the 
great gateway, which led to the inner 
ballium or courtyard. Thus at Tun- 
bridge Castle, this part of which is refer- 
red by Mr. King to the beginning of the 
thirteenth century, there was a room 
twenty-eight feet by sixteen on each 
side of the gateway ; another above, of 
the same dimensions, with an interme- 
diate room over the entrance ; and one 
large apartment on a second floor occu- 
pying the whole space, and intended for 
state. The windows in this class of cas- 
tles were still little better than loopholes 
on the basement story, but in the upper 
rooms often large and beautifully orna- 
mented, though always looking inwards 
to the court. Edward I. introduced a 
more splendid and convenient style of 
castles, containing many habitable tow- 
ers, with communicating apartments. 
Conway and Carnarvon will be familiar 
examples. The next innovation Avas the 
castle-palace ; of which Windsor, if not 
quite the earliest, is the most magnificent 
instance. Alnwick, Naworth, Harewood, 
Spofforth, Kenilworth, and Warwick, 
were all built upon this scheme during 
the fourteenth century, but subsequent 
enlargements have rendered caution ne- 
cessary to distinguish their original re- 
mains. " The odd mixture," says Mr. 
King, " of convenience and magnificence 
with cautious designs for protection and 
defence, and with the inconveniences of 
the former confined plan of a close for- 
tress, is very striking." The provisions 
for defence became now, however, little 

* Wbitaker's Hist, of Whalley. Lysons's Cum. 
berland, p. ccvi. 



Part II.] 



STATE OF SOCIETY, 



489 



more than nugatory ; large arched win- 
dows, like those of cathedrals, were in- 
troduced into halls, and this change in ar- 
chitecture manifestly bears witness to 
the cessation of baronial wars, and the 
increasing love of splendour in the reign 
of Edward III. 

To these succeeded the castellated 
houses of the fifteenth century ; such as 
Herstmonceux in Sussex, Haddon Hall 
in Derbyshire, and the older part of 
Knowle in Kent.* They resembled for- 
tified castles in their strong gateways, 
their turrets and battlements, to erect 
•which a royal license was necessary, but 
their defensive strength could only have 
availed against a sudden affray or attempt 
at forcible dispossession. They were al- 
ways built round one or two courtyards, 
the circumference of the first, when there 
were two, being occupied by the offices 
and servants' rooms, that of the second 
by the state-apartments. Regular quad- 
rangular houses, not castellated, were 
sometimes built during the same age, and 
under Henry VH. became universal in 
the superior style of domestic architec- 
ture.! The quadrangular form, as well 
from security and convenience as from 
imitation of conventual houses, which 
were always constructed upon that mod- 
el, was generally preferred ; even where 
the dwelling-house, as indeed was usual, 
only took up one side of the enclosure, 
and the remaining three contained the 
offices, stables, and farm-buildings, with 
walls of communication. Several very old 
parsonages appear to have been built in 
this manner. I It is, however, very diffi- 
cult to discover any fragments of houses 
inhabited by the gentry before the reign, 
at soonest, of Edward III., or even to 
trace them by engravings in the older to- 
pographical works ; not only from the di- 
lapidations of time, but because very few 
considerable mansions had been erected 
by that class. A great part of England 
affords no stone fit for building ; and the 
vast, though unfortunately not mexhaust- 
ible resources of her oak forests, were 
easily applied to less durable and magnif- 
icent structures. A frame of massive 
timber, independent of walls, and resem- 
bling the inverted hull of a large ship, 
formed the skeleton, as it were, of an an- 
cient hall; the principal beams springing 
from the ground naturally curved, and 



* The ruins of Herstmonceux are, I believe, 
tolerably authentic remains of Henry VI. 's age, 
but a modern antiquary asserts that only one of 
the courts at Haddon Hall is of the fifteenth cen- 
tury — Lysons's Derbyshire. 

t Archaeologia, vol. vi. 

t Blomefield's Norfolk, vol. iii., p. 242. 



forming a Gothic arch overhead. The 
intervals of these were filled up with hor- 
izontal planks ; but in the earlier build- 
ings, at least in some districts, no part 
of the walls was of stone.* Stone 
houses are however mentioned as be- 
longing to citizens of London, even in 
the reign of Henry II. ;t and, though not 
often perhaps regularly hewn stones, yet 
those scattered over the soil, or dug 
from flint quarries, bound together with 
a very strong and durable cement, were 
employed in the construction of manorial 
houses, especially in the westei^i coun- 
ties, and other parts where that material 
is easily procured. J Gradually, even in 
timber buildings, the intervals of the 
main beams, which now became perpen- 
dicular, not throwing off their curved 
springers till they reached a considerable 
height, were occupied by stone walls, or, 
where stone was expensive, by mortar 
or plaster, intersected by horizontal or 
diagonal beams, grooved into the princi- 
pal piers. ^ This mode of building con- 
tinued for a long time, and is still famil- 
iar to our eyes in the older streets of the 
metropolis and other towns, and in many 
parts of the country. || Early in the four- 
teenth century, the art of building with 
brick, which had been lost since the Ro- 
man dominion, was introduced, probably 
from Flanders. Though several edifices 
of that age are constructed with this ma- 
terial, it did not come into general use 
till the reign of Henry VI. ^ Many con 
siderable houses as well as public build- 
ings were erected with bricks during his 
reign and that of Edward IV., chiefly in 
the eastern counties, where the deficien- 
cy of stone was most experienced. Few, 
if any, brick mansion-houses of the fif- 
teenth century exist, except in a dilapi- 
clated state ; but Queen's College and 
€!lare Hall at Cambridge, and part of 
Eton College, are subsisting witnesses to 
the durability of the material as it was 
then employed. 

It is an error to suppose Meanne.ssor 
that the English gentry were or.iinary man- 
lodged in stately or even in s'on-houses. 



* Whitaker's Hist, of Whalley. 

t Lyttleton, t. iv., p. 130. 

t Harrison says that few of the houses of the 
commonalty, except here and there in the west 
country towns, were made of stone, p. 314. This 
was about 1570. ^ Hist, of Whalley. 

!l The ancient manours and houses of our gen- 
tlemen, says Harrison, are yet, and for the most 
part, of strong timber, in framing whereof our car- 
penters have been and are worthily preferred be- 
fore those of hke science among all other nations. 
Howbeit such as are lately builded are either of 
brick or hard stone, or both, p. 316. 

If Archasologia, vol. i., p. 143 ; vol. iv., p. 91. 



490 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



well-sized houses. Generally speaking, 
their dwellings were almost as inferi- 
or to those of their descendants in 
capacity as they were in convenience. 
The usual arrangement consisted of an 
entrance-passage running through the 
house, with a hall on one side, a parlour 
beyond, and one or two chambers above, 
and on the opposite side a kitchen, pan- 
try, and other offices.* Such was the 
ordinary manor-house of the fifteenth 
and sixteenth centuries, as a"ppears not 
only from the documents and engravings, 
but, as t«'the latter period, from the build- 
ings themselves, sometimes, though not 
very frequently, occupied by families 
of consideration, more often converted 
into farmhouses or distinct tenements. 
Larger structures were erected by men 
of great estates during the reigns of 
Henry VI. and Edward IV. ; but very 
few can be traced higher ; and such has 
been the effect of time, still more through 
the advance or decline of families, and 
the progress of architectural improve- 
ment, than the natural decay of these 
buildings, that I should conceive it diffi- 
cult to name a house in England, still in- 
habited by a gentleman, and not belong- 
ing to the order of castles, the principal 
apartments of which are older than the 
reign of Henry VII. The instances at 
least must be extremely fevv.f 

France by no means appears to have 
made a greater progress than our own 
country in domestic architecture. Except 
fortified castles, I do not find in the work 
of a very miscellaneous, but apparently 



* Hist, of Whalley. In Strutt's View of Man- 
ners we have an inventory of furniture in the 
house of Mr. Richard Fermor, ancestor of the Earl 
of Poinfret, at Easton, in Northamptonshire, and 
another in that of Sir Adrian Foskewe. Both 
these houses appear to have been of the dimeid 
eions and arrangement mentioned. And even in 
houses of a more ample extent, the bisection of 
the ground-plot by an entrance-passage was. I be- 
lieve, universal, and is a proof of antiquity. Had- 
don Hall and Penshurst still display this ancient 
arrangement, which has been altered in some old 
houses. About the reign of James I., or perhaps a 
little sooner, architects began to perceive the ad- 
ditional grandeur of entering the great hall at 
once. 

+ Single rooms, windows, doorways, &c., of an 
earlier date may perhaps not uni^requently be 
found ; but such instances are always to be verified 
by their intrinsic evidence, not by the tradition of 
the place. The most remarkable fragment of early 
building which I have anywhere found mentioned 
is at a house in Berkshire, called Appleton, where 
there exists a sort of prodigy, an entrance-passage 
with circular arches in the Saxon stvle, which 
must probably be as old as the reign of Henry II. 
No other private house in England, as I conceive, 
can boast of such a monument of antiquity. — Ly- 
sons's Berkshire, p. 212. 234. 



diligent writer,* any considerable dwell- 
ings mentioned before the reign of 
Charles VII., and very few of so early a 
date.f Jacques Cceur, a famous mer- 
chant, unjustly persecuted by that prince, 
had a handsome house at Paris, as well 
as another at Beaumont-sur-Oise.J It is 
obvious that the long calamities which 
France endured before the expulsion of 
the English must have retarded this 
eminent branch of national improve- 
ment. 

Even in Italy, where, from the size of 
her cities and social refinements of her 
inhabitants, greater elegance and splen- 
dour in building were justly to be expect- 
ed, the domestic architecture of the mid- 
dle ages did not attain any perfection. 
In several towns the houses were cover- 
ed with thatch, and suffered consequent- 
ly from destructive fires. Costanzo, a 
Neapolitan historian near the end of the 
sixteenth century, remarks the change 
of manners that had occurred since the 
reign of Joanna II., one hundred and 
fifty years before. The great families 
under the queen expended all their wealth 
on their retainers, and placed their chief 
pride in bringing them into the field. 
They were ill lodged, not sumptuously 
clothed, nor luxurious in their tables. 
The house of Caracciola, high steward 
of that princess, one of the most power- 
ful subjects that ever existed, having 
fallen into the hands of persons incom- 
parably below his station, had been en- 
larged by them, as insufficient for their 
accommodation.^ If such were the case 
in the city of Naples so late as the begin- 
ning of the fifteenth century, we may 



* Melanges tires d'une grande bibliotheque, pa? 
M. de Paulmy, t. iii., et xxxi. It is to be regretted 
that Le Grand d'Aussy never completed that part 
of his Vie privee des Fran^ais which was to hav^ 
comprehended the history of civil architecture. 
Villaret has slightly noticed its state about 1380, 
t. ii., p. 141. 

t Chenonceaux in Touraine was built by a 
nephew of Chancellor Dnprat ; Gaillon in the de- 
partment of Eure by Cardinal Amboise ; both at 
the beginning of the sixteenth century. These 
are now considered, in their ruins, as among the 
most ancient houses in France. A work by Du- 
cerceau (Les plus excellens Batimens de France, 
1607) gives accurate engravings of thirty houses ; 
but, with one or two exceptions, they seem all to 
have been built in the sixteenth century. Even in 
that age, defence was naturally an object in con- 
structing a French mansion-house ; and where de- 
fence is to be regarded, splendour and convenience 
must give way. The name of chateau was not 
retained without meaning. 

X Melanges tires, &c,, t. iii. For the prosperity 
and downfall of Jacques Coeur, see Villaret, t. xvi., 
p. 1 1 ; but more especially Mfem. de I'Acad. des In 
script., t. XX., p. 509. 

6 Giannone, Ist. di Napoli, t. iii., p. 280. 



Part II.] 



STATE OF SOCIETY. 



491 



guess how mean were the habitations in 
less polished parts of Europe. 

The two most essential improvements 
Inveniion of "^ architecture during this pe- 
chrmneys" riod, One of which had been 
and glass missed by the sagacity of 
windows. Qreece and Rome, were chim- 
neys and glass windows. Nothing ap- 
parently can be more simple than the 
former ; yet the wisdom of ancient times 
had been content to let the smoke escape 
by an aperture in the centre of the roof; 
and a discovery, of which Vitruvius had 
not a glimpse, was made perhaps in this 
country, by some forgotten semi-barbari- 
an. About the middle of the fourteenth 
century the use of chimneys is distinctly 
mentioned in England and in Italy ; but 
they are found in several of our castles 
which bear a much older date.* This 
country seems to have lost very early 
the art of making glass, which was pre- 
served in France, whence artificers were 
brought into England to furnish the win- 
dows in some new churches during the 
seventh century. f It is said that in the 
reign of Henry III., a few ecclesiastical 
buildings had glazed windows.^ Suger, 
however, a century before, had adorned 
his great work, the abbey of St. Denis, 
with windows, not only glazed, but paint- 
ed ;^ and I presume that other churches 
of the same class, botli in France and 
England, especially after the lancet- 
shaped window had yielded to one of 



* Muratori, Antich. Ital, Dissert. 25, p. 390. 
Beckman, in his History of Inventions, vol. i., a 
work of very great research, cannot trace any ex- 

? licit mention of chimneys beyond the vvrilmgs of 
ohn Villani, wherein however they are not noticed 
as a new mvention. Piers Plowman, a few years 
later than Villani, speaks of a " chambre with a 
chimney" in which rich men usually dined. But 
in the account-book of Bolton Abbey, under the 
year 1311, there is a charge pro faciendo camino in 
the rectory-house of Gargrave. — Whitaker's Hist. 
of Craven, p. 331. This may, I think, have been 
only an iron stove or firepan ; though Dr. W., 
without hesitation, translates it a chimney. How- 
ever, Mr. King, in his observations on ancient cas- 
tles, Archaeol.,vol. vi.,and Mr. Strutt, m his View 
of Manners, vol. i., describes chimneys in castles 
of a very old construction. That at Conisborough 
in Yorkshire is peculiarly worthy of attention, and 
carries back this important invention to a remote 
antiquity. Chimneys are still more modern in 
France ; and seem, according to Paulmy, to have 
come into common use snice the middle of the 
seventeenth century. Jadis nos peres n'avoient 
qu'un unique chauffoir, qui etoit commun a toute 
une famille, et quelquefois a plusieurs, t. iii., p. 
133. In another place, however, he says ; II parait 
que les tuyaux de chemin^es ctaient deja tr^s en 
usage en France, t. xxx., p. 232. 

t Du Cange,v. Vitreae. Bentham's History of 
Ely, p. 22. 

t Matt. Paris. Vitoe Abbatum St. Alb. 122. 

\ Recueildes Hist., t. xii., p. 101. 



ampler dimensions, were generally dec- 
orated in a similar manner. Yet glass is 
said not to have been employed in the 
domestic architecture of France before 
the fourteenth century ;* and its intro- 
duction into England was probably by no 
means earlier. Nor indeed did it come 
into general use during the period of the 
middle ages. Glazed windows were con- 
sidered as moveable furniture, and prob- 
ably bore a high price. When the earls 
of Northumberland, as late as the reign 
of Elizabeth, left Alnwick Castle, the 
windows were taken out of their frames 
and carefully laid by.f 

But if the domestic buildings of the 
fifteenth century would not seem Furniture 
very spacious or convenient at "f houses 
present, far less would this luxurious 
generation be content with their internal 
accommodations. A gentleman's house 
containing three or four beds was extra- 
ordinarily well provided; few probably 
had more than two. The walls were 
commonly bare, without wainscot or even 
plaster ; except that some great houses 
were furnished with hangings, ana that 
perhaps hardly so soon as the reign of 
Edward IV. It is unnecessary to add, 
that neither libraries of books nor pictures 
could have found a place among furni- 
ture. Silver plate was very rare, and 
hardly used for the table. A few inven- 
tories of furniture that still remain ex- 
hibit a miserable deficiency. J And this 
was incomparably greater in private gen- 
tlemen's houses than among citizens, and 
especially foreign merchants. We have 
an inventory of the goods belonging to 
Contarini, a rich Venetian trader, at his 
house in St. Botolph's Lane, A. D. 14SI. 
There appear to have been no less than 
ten beds, and glass windows are especi- 
ally noticed as moveable furniture. No 
mention however is made of chairs or 
looking-glasses.^ If we compare this 



* Paulmy, t. iii., p. 132. Villaret, t. xi.,p. HI. 
Macpherson, p. 679. 

t Northumberland Household Book, preface, 
p. 16. Bishop Percy says, on the authority ot Har 
rison, that glass was not commonly used in the 
reign of Henry VIII. 

t See some curious valuations of furniture and 
stock in trade at Colchester in 1296 and 1301. 
Eden's Introduct. to State of the Poor, p. 20 and 
25, from the rolls of parliament. A carpenter's 
stock was valued at a shilling, and consisted of five 
tools. Other tradesmen were almost as poor ; but 
a tanner's stock, if there is no mistake, was worth 
9/. ~s. lOd., more than ten times any other. Tanners 
were principal tradesmen, the chief part of dress 
being made of leather. A few silver cups and 
spoons are the onlv articles of plate ; and as the 
former are valued but at one or two shillings, they 
had I suppose, but a little silver on the rim. 

9'Nichoirs Illustrations, p. 119. In this work 



492 



EUROPE DURING THE MIDDLE AGES. 



Chap. IX. 



account, however trifling in our estima- 
tion, with a similar inventory of furniture 
in Skipton Castle, the great honour of the 
earls of Cumberland, and among the most 
splendid mansions of the north, not at 
the same period, for I have not found any 
inventory of a nobleman's furniture so 
ancient, but in 1572, after almost a cen- 
tury of continual improvement, we shall 
be astonished at the inferior provision of 
the baronial residence. There were not 
more than seven or eight beds in this 
great castle ; nor had any of the cham- 
bers either chairs, glasses, or carpets.* 
It is in this sense, probably, that we must 
understand iGneas Sylvius, if he meant 
any thing more than to express a travel- 
ler's discontent, when he declares that 
the kings of Scotland would rejoice to be 
as well lodged as the second class of cit- 
izens at Nuremberg.! Few burghers of 
that town had mansions, I presume, equal 
to the palaces of Dumferlin or Stirling, 
but it is not unlikely that they were bet- 
ter furnished. 
In the construction of farmhouses and 



among several interesting facts of the same class, 
we have another inventory of the goods of " John 
Port, late the king's servant," who died about 
1524 ; he seems to "have been a man of some con- 
sideration, and probably a merchant. The house 
consisted of a hall, parlour, buttery, and kitchen, 
with two chambers, and one smaller, on the floor 
above ; a napery, or linen room, and three garrets, 
besides a shop, which was probably detached. 
There were five bedsteads in the house, and on the 
whole a great deal of furniture for those times ; 
much more than I have seen in any other inven- 
tory. His plate is valued at 941. ; his jewels at 
23^; his funeral expenses come to 131. 6s. 8d., 
p. 119. 

* Whitaker's Hist, of Craven, p. 289. A better 
notion of the accommodations usual in the rank 
immediately below may be collected from two 
inventories published by Strutt, one of Mr. Ter- 
mor's house at Easton, the other Sir Adrian 
Foskewe's.— I have mentioned the size of these 
gentlemen's houses already. In the former, the 
parlour had wainscot, a table, and a few chairs ; 
the chambers above had two best beds, and there 
was one servant's bed ; but the inferior servants 
had only mattresses on the floor. The best cham- 
bers had window-shutters and curtains. Mr. Fer- 
mor, being a merchant, was probably better sup- 
plied than the neighbouring gentry. His plate, 
however, consisted only of sixteen spoons, and a 
few goblets and ale-pots. Sir Adrian Foskewe's 
opulence appears to have been greater ; he had a 
service of silver plate, and his parlour was fur- 
nished wiih hangings. This was in 1539 ; it is not 
to be imagined that a knight of the shire a hundred 
years before would have rivalled even this scanty 
provision of moveables. — Strutt's View of Man- 
ners, vol. iii., p. 63. These details, trilling as they 
may appear, are absolutely necessary in order to 
give an idea with some precision of a state of na- 
tional wealth so totally dift'erent from the present. 
■^ Cuperent tarn egregie Scotorum reges quam 
mediocres Nuremberg^ cives habitare.— .^n. Sylv. 
apud Schmidt, Hist, des Allem., t. v., p. 510. 



cottages, especially the latter. Farm- 
there have probably been fewer houses and 
changes ; and those it would be ^•"'se^- 
more difficult to follow. No building of 
this class can be supposed to exist of the 
antiquity to which the present work is 
confined ; and I do not know that we 
have any document as to the inferior 
architecture of England, so valuable as 
one which INI. de Paulmy has quoted for 
that of France, though perhaps more 
strictly applicable to Italy, an illuminated 
manuscript of the fourteenth century, 
being a translation of Crescentio's work 
on agriculture, illustrating the customs, 
and, among other things, the habitations 
of the agricultural class. According to 
Paulmy, there is no other diflference be- 
tween an ancient and a modern farm- 
house, than arises from the introduction 
of tiled roofs.* In the original work of 
Crescentio, a native of Bologna, who com- 
posed this treatise on rural affairs about 
the year 1300, an Italian farmhouse, 
when built at least according to his plan, 
appears to have been commodious both 
in size and arrangement. f Cottages in 
England seem to have generally consist- 
ed of a single room, without division of 
stories. Chimneys were unknown in 
such dvi^ellings till the early part of Eliz- 
abeth's reign, when a very rapid and sen- 
sible improvement took place in the com- 
forts of our yeomanry and cottagers. J 

It must be remembered, that I have in- 
troduced this disadvantageous Ecciesias- 
representation of civil architec- ticaiarchi- 
ture as a proof of general pov- '*'='"'■'-'• 
erty and backwardness in the refine- 
ments of life. Considered in its higher 
departments, that art is the principal 
boast of the middle ages. The common 
buildings, especially those of a public 
kind, were constructed Avith skill and at- 
tention to durability. The castellated 
style displays these qualities in greater 
perfection ; the means are well adapted 
to their objects, and its imposing gran- 
deur, though chiefly resulting no doubt 
from massiveness and historical associa- 
tion, sometimes indicates a degree of 

* .^n. Sylv. apud Schmidt, Hist, des Allem., t. 
iii., p. 127. 

t Crescentius in Commodum Ruralium. (Lo- 
vania;, absque anno.) This old edition contains 
many coarse wooden cuts, possibly taken from the 
illuminations which Paulmy found in his manu- 
script. 

t Harrison's account of England, prefixed to 
Hollingshed's Chronicles. Chimneys were not 
used in the farmhouses of Cheshire till within 
forty years of the publication of King's Vale-royal 
(1650); the fire was in the midst of the house 
against a hob of clay, and the oxen lived under the 
same i Mi. — Whitaker's Craven, p. 334. 



Part If.] 



STATE OF SOCIETY. 



493 



architectural genius in the conception. 
But the most remarkable works of this 
art are the religious edifices erected in 
the twelfth and three following centuries. 
These structures, uniting sublimity in 
general composition with the beauties of 
variety and form, intricacy of parts, skil- 
ful or at least fortunate effects of shadow 
and light, and in some instances with ex- 
traordmary mechanical science, are nat- 
urally apt to lead those antiquaries who 
are most conversant with them into too 
partial estimates of the times wherein 
they were founded. They certainly are 
accustomed to behold the fairest side of 
the picture. It was the favourite and 
most honourable employment of eccle- 
siastical Avealth, to erect, to enlarge, to 
repair, to decorate cathedral and con- 
ventual churches. An immense capital 
must have been expended upon these 
buildings in England between the con- 
quest and the reformation. And it is 
pleasing to observe how the seeds of 
genius, hidden as it were under the frost 
of that dreary winter, began to bud to 
the fir.'^ sunshine of encouragement. In 
the darkest period of the middle ages, 
especially after the Scandinavian incur- 
sions into France and England, ecclesi- 
astical architecture, though always far 
more advanced than any other art, be- 
spoke the rudeness and poverty of the 
times. It began towards the latter part 
of the eleventh century, when tranquilli- 
ty, at least as to former enemies, was re- 
stored, and some degree of learning re- 
appeared, to assume a more noble ap- 
pearance. The Anglo-Norman cathe- 
drals were perhaps as much distinguished 
above other works of man in their own 
age, as the more splendid edifices of a 
later period. The science manifested in 
them is not however very great ; and 
their style, though by no means destitute 
of lesser beauties, is upon the whole an 
awkward imitation of Roman architec- 
ture, or perhaps more immediately of the 
Saracenic buildings in Spain, and those 
of the lower Greek empire.* But about 

* The Saracenic architecture was once con- 
ceived to have been the parent of the Gothic. But 
the pointed arch does not occur, I believe, in any 
Moorish buildings ; while the great mosque of Cor- 
dova, built in the eighth century, resembles, ex- 
cept by its superior beauty and magnificence, one 
of our oldest cathedrals ; the nave of Glocester for 
example, or Durham. Even the vaulting is simi- 
lar, and seems to indicate some imitation, though 
perhaps of a common model. Compare Archaeo- 
logia, vol. xvii., plate 1 and 2, with Murphy's Ara- 
bian Antiquities, plate 5. The pillars indeed at 
Cordova are of the Corinthian order, perfectly ex- 
ecuted, if we may trust the engraving, and the 
work. I presume, of Christian architects ; while 



the middle of the twelfth century, this 
manner began to give place to what is 
improperly denominated the Gothic ar- 
chitecture ;* of which the pointed arch, 
formed by the segments of two inter- 
secting semicircles, struck from points 
equidistant from the centre of a common 
diameter, has been deemed the essential 
characteristic. We are not concerned at 
present to inquire whether this style ori 
ginated in France or Germany, Italy or 
England, since it was certainly almost 
simultaneous in all these countries ;f nor 

those of our Anglo-Norman cathedrals are gener- 
ally an imitation of the Tuscan shaft, the builders 
not venturing to trust their roofs to a more slender 
support, though Corinthian foliage is common in 
the capitals, especially those of smaller ornamen- 
tal columns. In fact, the Roman architecture is 
universally acknowledged to have produced what 
we call the Saxon or Norman ; but it is remarka- 
ble that it should have been acioptcd, with no varia- 
tion but that of the singular horseshoe arch, by the 
Moors of Spain. 

The Gothic, or pointed arch, though very uncom- 
mon in the genuine Saracenic of Spain and the 
Levant, may be found in some prints from eastern 
buildings ; and is particularly striking in the fac^ade 
of the great mosque at Lucknow, in Salt's designs 
for Lord Valentia's Travels. The pointed arch 
buildings in the Holy Land have all been traced to 
the age of the crusades. Some arches, if they 
deserve the name, that have been referred to 
this class, are not pointed by their construction, 
but rendered such by cutting off and hollowing the 
projections of horizontal stones. 

* Gibbon has asserted, what might justify this 
appellation, that " the image of Theodoric's palace 
at Verona, still extant on a coin, represents the 
oldest and most authentic model of Gothic architec- 
ture," vol. vii., p. 33. For this he refers to Maffei, 
Verona Ulustrata, p. 31, where we find an engra- 
ving, not indeed of a coin, but of a seal ; the build- 
ing represented on which is in a totally dissimilar 
style. The following passages in Cassiodorus, for 
which I am indebted to M. Gmguene, Hist. Litter, 
de ritalie, t. i., p. 55, would be more to the pur- 
pose ; Quid dicamus columnarurn junceam proce- 
ritatem '( moles illas subliinissimas fabricarum qua- 
si quibusdam erectis hastilibus contineri. These 
columns of reedy slenderness, so well described by 
juncea procentas, are said to be found in the cathe- 
dral of Montreale in Sicily, built in the eighth cen- 
tury.— Knight's Principles of Taste, p. 162. They 
are not however sufficient to justify the denom- 
ination of Gothic, which is usually confined to the 
pointed arch style. 

t The famous abbot Suger, minister of Louis 
V[., rebuilt St. Denis about 1110. The cathedral 
of Laon is said to have been dedicated in 1114. — 
Hist. Litteraire de la France, t. ix., p. 220. 1 do 
not know in what style the latter of these churches 
is built, but the former is, or rather was, Gothic. 
Notre Dame at Paris was begun soon alter the mid- 
dle of the twelfth century, and completed under 
St. Louis. Melanges tires d'une grande bibliothd- 
que, t. xxxi., p. 108, In England the earliest spe- 
cimen I have seen of pointed arches is ip. a print of 
St. Botolph's priory at Colchester, said by Strutt 
to have been built in 1110.— View of Manners, vol. 
i., plate 30. These are apertures formed by exca 
vating the space contained by the intersection of 
semicircular or Saxon arches ; which are perpet 



494 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



from what source it was derived ; a ques- 
tion of no small difficulty. I would only 
venture to remark, that whatever may be 
thought of the origin of the pointed arch, 
for which there is more than one mode 
of accounting", we must perceive a very 
oriental character in the vast profusion 
of ornament, especially on the exterior 
surface, which is as distinguishing a mark 
of Gothic buildings as their arches, and 
contributes in an eminent degree both to 
their beauties and to their defects. This 
indeed is rather applicable to the later 
than the earlier stage of architecture, 
and rather to continental than English 
churches. Amiens is in a far more florid 
style than Salisbury, though a contem- 
porary structure. The Gothic species of 
architecture is thought by some to have 
reached its perfection, considered as an 
object of taste, by the middle of the four- 
teenth century, or at least to have lost 
something of its excellence by the cor- 
responding part of the next age ; an effect 
of its early and rapid cultivation, since 
arts appear to have, like individuals, their 
natural progress and decay. Yet this 
seems, if true at all, only applicable to 
England; since the cathedrals of Co- 
logne and Milan, perhaps the most distin- 
guished monuments of this architecture, 
are both of the fifteenth century. The 
mechanical execution, at least, continued 
to improve, and is so far beyond the ap- 
parent intellectual powers of those times, 
that some have ascribed the principal ec- 
clesiastical structures to the fraternity of 
freemasons, depositaries of a concealed 
and traditionary science. There is proba- 
bly some ground for this opinion ; and 
the earlier archives of that mysterious 
association, if they existed, might illus- 
trate the progress of Gothic architectui-e, 
and perhaps reveal its origin. The re- 
markable change into this new style, that 
was almost contemporaneous in every 
part of Europe,* cannot be explained by 



ually disposed, by way of ornament, on the outer 
as well as inner surface of old churches, so as to 
cut each other, and consequently to produce the 
figure of a Gothic arch ; and if there is no mistake 
in the date, they are probably among the most an- 
cient of that style in Europe. Those at the church 
of St. Cross near Winchester are of the reign of 
Stephen ; and, generally speaking, the pointed 
style, especially in vaulting, the most important 
object in the construction of a budding, is not con- 
sidered as older than Henry II. The nave of Can- 
terbury cathedral, of the erection of which by a 
French architect about 1176 we have a full ac- 
count in Gervase (Twysden, Decern Scriptores, 
col. 1289), and the Temple church, dedicated m 
1183, are the most ancient English buildings alto- 
gether in the Gothic manner. 

* The curious subject of freemasonry has un- 



any local circumstances, or the capri- 
cious taste of a single nation. 

It would be a pleasing tisk to trace 
with satisfactory exactness the Agriculture 
slow, and almost perhaps insen- in^some de- 
sible progress of agriculture and |ressiv°e. 
internal improvement during the 
latter period of the middle ages. But no 
diligence could recover the unrecorded 
history of a single village ; though consid- 
erable attention has of late been paid to 
this interesting subject by those antiqua- 
ries who, though sometimes affecting to 
despise the lights of modern philosophy, 
are unconsciously guided by their effid- 
gence. I have already adverted to the 
wretched condition of agriculture during 
the prevalence of feudal tenures, as well 
as before their general establishment.* 
Yet, even in the least civilized ages, there 
were not wanting partial encouragements 



fortunately been treated only by panegyrists or ca- 
lumniators, both equally mendacious. 1 do not 
wish to pry into the mysteries of the craft ; but it 
would be interesting to know more of their history 
during the period when they were literally archi- 
tects. They are charged by an act of p^tiament, 
3 H. VI., c. 1, with fixing the price of their labour 
in their annual chapters, contrary to the statute of 
labourers, and such chapters are consequently pro- 
hibited. This is their first persecution ; they have 
since undergone others, and are perhaps reserved 
for still more. It is remarkable that masons were 
never legally incorporated, like other traders ; their 
bond of union being stronger than any charter. 
The article Masonry, in the Encyclopaedia Britan- 
nica, is worth reading. 

* I cannot resist the pleasure of transcribing a 
lively and eloquent passage from Dr. Whitaker. 
" Could a curious observer of the present day carry 
himself nine or ten centuries back, and, ranging the 
summit of Pendle, survey the forked vale of Cal- 
der on one side, and the bolder margins of Ribble and 
Hadder on the other, instead of populous towns 
and villages, the castle, the old tower-built house, 
the elegant modern mansion, the artificial planta- 
tion, the enclosed park and pleasure-ground : in- 
stead of uninterrupted enclosures, which have driv- 
en sterility almost to the summit of the fells, how 
great must then have been the contrast, when, 
ranging either at a distance or immediately be- 
neath, his eye must have caught vast tracts of for- 
est-ground, stagnating with bog or darkened by na- 
tive woods, where the wild ox, the roe, the stag, 
and the wolf, had scarcely learned the supremacy 
of man, when, directing his view to the intermedi- 
ate spaces, to the windings of the valleys, or the 
e.xpanse of plains beneath, he could only have dis- 
tinguished a few insulated patches of culture, each 
encircling a village of wretched cabins, among 
which would still be remarked one rude mansion 
of wood, scarcely equal in comfort to a modern 
cottage, yet then rising proudly eminent above the 
rest, where the Saxon lord, surrounded by his 
faithful cotarii, enjoyed a rude and solitary inde- 
pendence, owning no superior but his sovereign." — 
Hist, of Whalley, p. 133. About a fourteenth part 
of this parish of Whalley was cultivated at the 
time of Domesday. This proportion, however, 
would by no means hold in the counties south of 
Trent. 



Part II.] 



STATE OF SOCIETY, 



495 



to cultivation, and the ameliorating prin- 
ciple of human industry struggled against 
destructive revolutions and barbarous dis- 
order. The devastation of war from the 
fifth to the eleventh century rendered 
land the least costly of all gifts, though 
it must ever be the most truly valuable 
and permanent. Many of the grants to 
monasteries, which strike us as enor- 
mous, were of districts absolutely wast- 
ed, which would probably have been re- 
claimed by no other means. We owe 
the agricultural restoration of great part 
of Europe to the monks. They chose, 
for the sake of retirement, secluded re- 
gions, which they cultivated with the 
labour of their hands.* Several char- 
ters are extant, granted to convents, 
and sometimes to laymen, of lands which 
they had recovered from a desert condi- 
tion, after the ravages of the Saracens. f 
Some districts were allotted to a body of 
Spanish colonists, who emigrated, in the 
reign of Louis the Debonair, in search of 
a Christian sovereign. J Nor is this the 
only instance of agricultural colonies. 
Charlemagne transplanted part of his 
conquered Saxons into Flanders, a coun- 
try at that time almost unpeopled ; and, 
at a much later period, there was a re- 
markable reflux from the same country, 
or rather from Holland, to the coasts of 
the Baltic Sea. In the twelfth century, 
great numbers of Dutch colonists settled 
along the whole line between the Ems 
and the Vistula. They obtained grants 
of uncultivated land on condition of fixed 
rents, and were governed by their own 
laws under magistrates of their own elec- 
tion. ^ 



* " Of the Anglo-Saxon husbandry we may re- 
mark," says Mr. Turner, " that Domesday Survey 
gives us some indication that the cultivation of the 
church lands was much superior to that of any 
other order of society. They have much less wood 
upon them, and less common of pasture ; and what 
they had appears often in smaller and more irregu- 
lar pieces ; while their meadow was more abun- 
dant, and in more numerous distributions." — Hist, 
of Anglo-Saxons, vol. ii., p. 167. 

t Thus, in Marca Hispanica, Appendix, p. 770, 
we have a grant from Lothaire I. in 834»ito a per- 
son and his brother, of lands which their father, ab 
eremo in Septimania trahens, had possessed by a 
charter of Charlemagne. See too p. 773, and 
other places. Du Cange, v. Eremus, gives also a 
few instances. 

J Du Cange, v. Aprisio. Baluze, Capitularia, t. 
i., p. 549. They were permitted to decide petty 
suits among themselves, but for more important 
matters were to repair to the county-court. A lib- 
eral poUcy runs through the whole charter. See 
more on the same subject, id., p. 569, 

<J I owe this fact to M. Heeren, Essai sur I'lnflu- 
encedes Croisades, p. 226. An inundation in their 
own country is supposed to have immediately pro- 
duced this emigration; but it was probably sue- 



There cannot be a more striking proof 
of the low condition of English agricul- 
ture in the eleventh century, than is ex- 
hibited by Domesday book. Though al- 
most all England had been partially cul- 
tivated, and we find nearly the same ma- 
nors, except in the north, which exist at 
present, yet the value and extent of cul- 
tivated ground are inconceivably small. 
With every allowance for the inaccura- 
cies and partialities of those by whom 
that famous survey was completed,* we 
are lost in amazement at the constant 
recurrence of two or three carucates 
in demesne, with folklands occupied by 
ten or a dozen villeins, valued altogether 
at forty shillings, as the return of a manor, 
which now would yield a competent in- 
come to a gentleman. If Domesday book 
can be considered as even approaching to 
accuracy in respect of these estimates, ag 
riculture must certainly have made a very 
material progress in the four succeeding 
centuries. This, however, is rendered 
probable by other documents. Ingulfus, 
abbot of Croyland under the Conqueror, 
supplies an early and interesting evidence 
of improvement. Richard de Rules, lord 
of Deeping, he tells us, being fond of ag- 
riculture, obtained permission from the 
abbey to enclose a large portion of marsh 
for the purpose of separate pasture, ex- 
cluding the Welland by a strong dike, 
upon which he erected a town, and ren- 
dering those stagnant fens a garden of 
Eden.f In imitation of this spirited cul- 
tivator, the inhabitants of Spalding and 
some neighbouring villages, by a com- 
mon resolution, divided their marshes 
among them ; when some converting 
them to tillage, some reserving them for 
meadow, others leaving them in pasture 
found a rich soil for every purpose. The 

cessive, and connected with political as well as 
physical causes of greater permanence. The first 
instrument in which they are mentioned is a grant 
from the Bishop of Hamburgh in 1106. This colo- 
ny has affected the local usages, as well as the de- 
nominations of things and places along the north- 
ern coast of Germany. It must be presumed that 
a large proportion of the emigrants were diverted 
from agriculture to people the commercial cities 
which grew up in the twelfth century upon that 
coast. 

* Ingulfus tells us that the commissioners were 
pious enough to favour Croyland, returning its 
possessions inaccurately, both as to measurement 
and value ; non ad verum pretium, nee ad verum 
spatium nostrum monasterium librabant miseri- 
corditer, prsecaventes in futiirum regis exactioni- 
bus, p. 79. I may just observe, by-the-way, that 
Ingulfus gives the plain meaning of the word 
Domesday, which has been disputed. The book 
was so called, he says, pro sua generalitate omnia 
tenementa totius terrre integr^ continente ; that is, 
it was as general and conclusive as the last judg- 
ment will be. 1 1 Gale, xv. Script., p. 7". 



496 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



abbey of Croyland and villages in that 
neighbourhood followed this example.* 
This early instance of parochial enclosure 
is not to be overlooked in the history of 
social progress. By the statute of Mer- 
ton, in the 20th of Henry 111., the lord is 
permitted to approve, that is, to enclose, 
the waste lands of his manor, provided 
he leave sufficient common or pasture for 
the freeholders. Higden, a writer who 
lived about the time of Richard II., says, 
in reference to the number of hydes and 
vills of England at the conquest, that by 
clearing of woods and ploughing up 
wastes, there were many more of each 
in his age than formerly.f And it might 
be easily presumed, independently of 
proof, that woods were cleared, marshes 
drained, and wastes brought into tillage, 
during the long period that the house of 
Plantagenet sat on the throne. From 
manorial surveys indeed, and similar in- 
struments, it appears that in some places 
there was nearly as much ground culti- 
vated in the reign of Edward III. as at 
the present day. The condition of dif- 
ferent counties, however, was very far 
from being alike, and in general the nor- 
thern and western parts of England were 
the most backward. J 

The culture of arable land was very 
imperfect. Fleta remarks, iu the reign 
of Edward I. or II., that unless an acre 
yielded more than six bushels of corn, 
the farmer would be a loser and the land 
yield no rent.^ And Sir John CuUuni, 
from very minute accounts, has calcula- 
ted that nine or ten bushels were a full 
average crop on an acre of wheat. An 
amazing excess of tillage accompanied, 
and partly, I suppose, produced this im- 
perfect cultivation. In Hawsted, for ex- 
ample, under Edward I., there were thir- 
teen or fourteen hundred acres of arable, 
and only forty-five of meadow ground. 
A similar disproportion occurs almost in- 
variably in every account we possess. || 
This seems inconsistent with the low 
price of cattle. But we must recollect 
that the common pasture, often the most 



* Communi plebiscito viritim inter se divisemnt, 
et quidam suas portiones agricolantes, quidam ad 
foenum conservantes, quidam ut prius ad pasturarn 
suoruin animalium separaliter jacere permittentes, 
terrain pinguem et uberem repererunt, p. 94. 

t 1 Gale, XV. Script., p. 201. 

t A good deal of information upon the former 
state of agriculture will be found in Cullum's His- 
tory of Hawsted. Blometield's Norfolk is in this 
respect among the most valuable of our local his- 
tories. Sir Frederick Eden, in the first part of his 
excellent work on the poor, has collected several 
interesting facts. () L. ii., c. 8. 

II Culluin, p. 100, 220. Eden's State of Poor, 
&c., p. 48. Whitaker's Craven, p. 45, 33G. 



extensive part of a manor, is not inclu- 
ded, at least by any specific measure- 
ment, in these surveys. The rent of land 
diflfered of course materially ; sixpence 
an acre seems to have been about the 
average for arable land in the thirteenth 
century,* though meadow was at double 
or treble that sum. But the landlords 
were naturally solicitous to augment a 
revenue that became more and more in- 
adequate to their luxuries. They grew 
attentive to agricultural concerns, and 
perceived that a high rate of produce, 
against which their less enlightened an- 
cestors had been used to clamour, would 
bring much more into their coffers than 
it took away. The exportation of corn 
had been absolutely prohibited. But the 
statute of the I5lh Henry VI,, c. 2, reci- 
ting that " on this account farmers, and 
others who use husbandry, cannot sell 
their corn but at a low price, to the great 
damage of the realm," permits it to be 
sent anywhere but to the king's enemies, 
so long as the quarter of wheat shall not 
exceed 65. 8d. in value, or that of barley 
3s. The price of wool w'as fixed in the 
thirty-second year of the same reign at a 
minimum, below which no person was 
suffered to buy it, though he might give 
more ;f a provision neither wise nor equi- 
table, but obviously suggested by the 
same motive. Whether the rents of land 
were augmented in any degree through 
these measures, I have not perceived ; 
their great rise took place in the reign of 
Henry VIII., or rather afterward. J The 
usual price of land under Edward IV. 
seems to have been ten years purchase.^ 
It may easily be presumed that an Eng- 
lish writer can furnish very lit- nsconditior 
tie information as to the state in trance 
of agriculture in foreign coun- ^'"^ "'*'>'• 
tries. In such works relating to France 
as have fallen within my reach, I have 
found nothing satisfactory, and cannot 
pretend to determine whether the natu- 
ral tendency of mankind to ameliorate 
their condition had a greater influence in 
promoting agriculture, or the vices inhe- 
rent ift the actual order of society, and 

* I infer this from a number of passages In 
Blomefield, CuUum, and other writers. Hearne 
says that an acre was often called Solidata terroe ; 
because the yearly rent of one on the best land was 
a shilling. — Lib. Nig. Scacc, p. 3L 

t Rot. Pari., vol. v., p. 275. 

i A passage in Bishop Latimer's sermons, too 
often quoted to require repetition, shows that land 
was much underlet about the end of the fifteenth 
century. His father, he says, kept half a dozen 
husbandmen, and milked thirty cows, on a farm of 
three or four pounds a year. It is not surprising 
that he lived as plentifully as iiis son describes 

I) Rymer, t. xii., p. 204. 



PjlRT II.] 



STATE OF SOCIETY. 



497 



those public misfortunes to which that 
kingdom was exposed, in retarding it.* 
The state of Italy was far different ; the 
rich Lombard plains, still more fertih- 
zed by irrigation, became a garden, and 
agriculture seems to have reached the 
excellence which it still retains. The 
constant warfare indeed of neighbouring 
cities is not very favourable to industry ; 
and upon this account we might incline 
to place the greatest territorial improve- 
ment of Lombardy at an era rather poste- 
rior to that of her repubhcan government ; 
but from this it primarily sprung ; and 
without the subjugation of the feudal ar- 
istocracy, and that perpetual demand 
upon the fertility of the earth which an 
increasing population of citizens produ- 
ced, the valley of the Po would not have 
yielded more to human labour than it had 
done for several preceding centuries. f 
Though Lombardy was extremely popu- 
lous in the thirteenth and fourteenth cen- 
turies, she exported large quantities of 
corn. J The very curious treatise of Cres- 
centius exhibits the full details of Italian 
hu.sbandry about 1300, and might afford 
an interesting comparison to those who 
are acquainted with its present state. 
That state, indeed, in many parts of Italy, 
displays no symptoms of decline. But 
whatever mysterious influence of soil or 
climate has scattered the seeds of death 
on the western regions of Tuscany, had 
not manifested itself in the middle ages. 
Among uninhabitable plains, the travel- 
ler is struck by the ruins of innumerable 
castles and villages, monuments of a time 
when pestilence was either unfelt, or had 
at least not forbade the residence of man- 
kind. Volterra, whose deserted wahs 
look down upon that tainted solitude, 
was once a small but free republic ; Sie- 
na, round whom, though less depopula- 
ted, the malignant influence hovers, was 
once almost the rival of Florence. So 
melancholy and apparently irresistible a 
decline of culture and population through 
physical causes, as seems to have grad- 
ually overspread a large portion of Italy, 
has not perhaps been experienced in any 
other part of Europe, unless we except 
Iceland. 

The Italians of the fourteenth century 
Gardening secm to have paid some atten- 
tion to an art, of which, both as 
related to cultivation and to architecture, 
our own forefathers were almost entirely 

* Velley and Villaret scarcely mention the sub- 
ject; and Le Grand merely tells us that it was en- 
tirely neglected ; but the details of such an art 
even in its state of neglect might be interesting. 

t Muratori, Dissert. 21. f Denina, 1. li., c. 7. 

li 



ignorant. Crescentius dilates upon hor- 
ticulture, and gives a pretty long list of 
herbs both esculent and medicinal.* His 
notions about the ornamental department 
are rather beyond what we should ex- 
pect, and I do not know that his scheme 
of a flower-garden could be much amend- 
ed. His general arrangements, which 
are minutely detailed with evident fond- 
ness for the subject, would of course ap- 
pear too formal at present ; yet less so 
than those of subsequent times ; and 
though acquainted with what is called 
the topiary art, that of training or cutting 
trees into regular figures, he does not 
seem to run into its extravagance. Reg- 
ular gardens, according to Paulmy, were 
not made in France till the sixteenth or 
even seventeenth century ;t yet one is 
said to have existed at the Louvre, of 
much older construction.^ England, I 
beheve, had nothing of the ornamental 
kind, unless it were some trees regularly 
disposed in the orchard of a monastery. 
Even the common horticultural art for 
culinary purposes, though not entirely 
neglected, since the produce of gardens 
is sometimes mentioned in ancient deeds, 
had not been cultivated with much at- 
tention. § The esculent vegetables now 
most in use were introduced in the reign 
of Elizabeth, and some sorts a great deal 
later. 

I should leave this slight survey of eco- 
nomical history still more im- chano-esin 
perfect, were I to make no ob- vaiueV 
servation on the relative values ""o'ley- 
of money. Without something like pre- 
cision in our notions upon this subject, ev- 
ery statistical inquiry becomes a source 
of confusion and error. But consider- 
able difficulties attend the discussion. 
These arise principally from two causes ; 
the inaccuracy or partial representations 
of historical writers, on iviiom we are 
accustomed too implicitly to rely, and 
the change of manners, which renders a 
certain command over articles of pur- 
chase less adequate to our wants than it 
was in former ages. 

The first of these diflUculties is capable 
of being removed by a circumspect use 
of authorities. When this part of statis- 
tical history began to excite attention, 
which was hardly perhaps before the pub- 
lication of Bishop Fleetwood's Chronicon 
Preciosum, so few authentic documents 
had been published with respect to prices, 
that inquirers were glad to have recourse 



* Denina, 1. vi. 

t Idem, t. iii., p. 115; t. xxxi., p. 258. 

i De la Mare, Traite de la Police, t. iii., p. 380 

I Eden's State of Poor, vol. i., p. 51. 



498 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



to historians, even when not contempo- 
rary, for such facts as they had thought 
fit to record. But these historians were 
sometimes too distant from the times 
concerning which they wrote, and too 
careless in thtir general character, to 
merit much regard ; and even when con- 
temporary, were often credulous, remote 
from the concerns of the -world, and, at 
the best, more apt to register some ex- 
traordinary phenomenon of scarcity or 
cheapness, than the average rate of pe- 
cuniary dealings. The one ought, in my 
opinion, to be absolutely rejected as tes- 
timonies, the other to be sparingly and 
diffidently admitted.* For it is no longer 
necessary to lean upon such uncertain 
witnesses. During the last century a 
very laudable industry has been shown 
by antiquaries in the publication of ac- 
count-books belonging to private persons, 
registers of expenses in convents, returns 
of markets, valuations of goods, tavern- 
bills, and, in short, every document, how- 
ever trifling in itself, by which this im- 
portant subject can be illustrated. A suf- 
ficient number of such authorities, pro- 
ving the ordinary tenour of prices, rather 
than any remarkable deviations from it, 
are the true basis of a table, by which all 
changes in the value of money should be 
measured. I have little doubt but that 
such a table might be constructed from 
the data we possess, with tolerable ex- 
actness, sufficient at least to supersede 
one often quoted by political economists, 
but which appears to be founded upon 

* Sir F. Eden, whose table of prices, though 
capable of some improvement, is perhaps the best 
that has appeared, would, I think, have acted bet- 
ter, by omitting all references to mere historians, 
and relying entirely on regular documents. I do 
not, however, include local histories, such as the 
Atmals of Dunstaple, when they record the mar- 
ket-prices of their neighbourhood, in respect of 
which the book last mentioned is almost in the na- 
ture of a register. Dr. Whitaker remarks the in- 
exactness of Stowe, who says that wheat sold in 
London, A. D. 1514, at 20s. a quarter ; whereas it 
appears to have been at 9s. in Lancashire, where it 
was always dearer than in the metropolis.— Hist. 
of Whalley, p. 97. It is an odd mistake, into which 
SirF. Eden has fallen, when he asserts and argues 
on the supposition, that the price of wheat fluctua- 
ted, in the thirteenth century, from Is. to 6/. 8s. a 
quarter, vol. i., p. 18. Certainly, if any chronicler 
had mentioned such a price as the latter, equiva- 
lent to 150/. at present, we should either suppose 
that his text was corrupt, or reject it as an absurd 
exaggeration. But, in fact, the author has, through 
haste, mistaken 6s. 8d. for 6/. 8s., as will appear by 
leferring to his own table of prices, where it is set 
down rightly. It is observed by Mr. Macpherson, 
a very competent judge, that the arithmetical state- 
ments of the best historians of the middle ages are 
seldom correct, owing partly to their neglect of ex- 
amination, and partly to blunders of transcribers. — 
Annals of Commerce, vol. i., p. 423. 



very superficial and erroneous inqui- 
ries.* 

It is by no means required that I 
should here offer such a table of values, 
which, as to every country except Eng- 
land, I have no means of constructing 
and which, even as to England, would be 
subject to many difficulties. But a read- 
er unaccustomed to these investigations 
ought to have some assistance in com- 
paring the prices of ancient times with 
those of his own. I will therefore, with- 
out attempting to ascend very high, for 
we have really no sufficient data as to 
the period immediately subsequent to the 
conquest, much less that which prece- 
ded, endeavour at a sort of approxima- 
tion for the thirteenth and fifteenth cen- 
turies. In the reigns of Henry III. and 
Edward I., previously to the first debase- 
ment of the coin by the latter in 1301, 
the ordinary price of a quarter of wheat 
appears to have been about four shillings, 
and that of barley and oats in propor- 
tion. A sheep was rather sold high at a 
shiUing, and an ox might be reckoned at 
ten or twelve. f The value of cattle is of 
course dependant upon their breed and 
condition ; and we have unluckily no 
early account of butcher's meat ; but we 
can hardly take a less multiple than 
about thirty for animal food, and eighteen 
or twenty for corn, in order to bring the 
prices of the thirteenth century to a 
level with those of the present day.;}; 
Combining the two, and setting the com- 
parative dearness of cloth against the 
cheapness of fuel and many other arti- 
cles, we may perhaps consider any 
given sum under Henry III. and Edward 
I. as equivalent in general command 



* The table of comparative values by Sir George 
Shuckburgh (Phiiosoph. Transact, for 1798, p. 
196) IS strangely incompatible with every result to 
which my own reading has led me. It is the hasty 
attempt of a man accustomed to different studies ; 
and one can neither pardon the presumption of ob- 
truding such a slovenly performance on a subjec: 
where the utmost diligence was required, nor the 
affisctation with which he apologizes for "descend- 
ing from the dignity of philosophy." 

t Blometield's History of Norfolk, and Sir J. Cul- 
lum's of Hawsted, furnish several pieces even at 
this early period. Most of them are collected by 
Sir F. Eden. Fleta reckons four shillings the 
average price of a quarter of wheat in his time, 1. 
ii., c. 81. This writer has a digression on agricul- 
ture, whence, however, less is to be collected than 
we should expect. 

t The fluctuations of price have unfortunately 
been so great of late years, that it is almost as dif- 
ficult to determine one side of our equation as the 
other. Any reader, however, has it in his power 
to correct my proportions, and adopt a greater or 
less multiple, according to his own estimate of 
current prices, or the changes that may take plac^ 
from the time when this is written [1816]. 



PXET II.] 



STATE OF SOCIETY. 



409 



over commodities to about twenty-four 
or twenty-five times their nominal value 
at present. Under Henry VI. the coin 
had lost one third of its weight in silver, 
which caused a proportional increase of 
money prices ;* but, so far as I can per- 
ceive, there had been no diminution in 
ihe value of that metal. We have not 
much information as to the fertility of 
the mines which supplied Europe during 
the middle ages ; but it is probable that 
the drain of silver towards the East, 
joined to the ostentatious splendour of 
courts, might fully absorb the usual 
produce. By the statute 15 H. VI., c. 2, 
the price up to wliich wheat might be 
exported is fixed at 6s. 8d., a point no 
doubt above the average ; and the private 
documents of that period, which are suf- 
ficiently numerous, lead to a similar re- 
sult.f Sixteen will be a proper multiple, 



* I have sometimes been surprised at the facility 
with which prices adjusted themselves to the 
quantity of silver contained in the current coin, in 
ages which appear too ignorant and too little com- 
mercial for the application of this mercantile prin- 
ciple. But the extensive dealings of the Jewish 
and Lombard usurers, who had many debtors in 
almost all parts of the country, would of itself in- 
troduce a knowledge, that silver, not its stamp, 
was the measure of value. I have mentioned in 
another place (vol. i.,p. 185) the heavy discontents 
excited by this debasement of the coin in France ; 
but the more gradual enhancement of nominal prices 
in England seems to have prevented any strong 
manifestations of a similar spirit at the succes- 
sive reductions in value which the coin experienced 
from the year 1300. The connexion however be- 
tween commodities and silver was well understood. 
Wykes, an annalist of Edward I.'s age, tells us 
that the Jews clipped our coin till it retained 
hardly half its due weight, the effect of which was 
a general enhancement of prices and decline of 
foreign trade : Mercatores transmarini cum merci- 
moniis suis regnum Anglias minus solito frequenta- 
bant ; necnon quod omnimodavenalmm genera in- 
comparabiliter solito fuerunt cariora. — 2 Gale, xv. 
Script., p. 107. Another chronicler of the same 
age complains of bad foreign money, alloyed with 
copper ; nee erat in quatuor aut quinque ex iis 

pondus unius denarii argenti Eratque pessi- 

mum sasculum pro tali moneta, et fiebant commu- 
tationes plurima; in emptione et venditione rerum. 
Edward, as the historian informs us, bought in this 
bad money at a rate below its value, in order to 
make a profit ; and fined some persons who inter- 
fered with his traffic. — W. Hemingford, ad ann. 
1299. 

t These will chiefly be found in Sir F. Eden's 
table of prices ; the following may be added from 
the account-book of a convent between 1415 and 
1425. Wheat varied from 4s. to 6s.— barley from 
3s. 2d. to 4s. lOd. — oats from Is. 8d. to 2s. 4d.— 
oxen from 12s. to 16s. — sheep from Is. 2d. to Is. 
4d.— butter |d. per lb. — eggs twenty-five for Id. — 
cheese ^d. per lb. — Lansdowne MSS.,vol. i., Nos. 
28 and 29. These prices do not always agree with 
those given in other documents of equal authority 
in the same period ; but the value of provisions 
varied in different countries, and still more so in 
different seasons of the year 
112 



when we would bring the general value 
of money in this reign to our present 
standard.* 

But after ascertaining the proportional 
values of money at different periods by a 
comparison of the prices in several of 
the chief articles of expenditure, which 
is the only fair process, we shall some- 
times be surprised at incidental facts of 
this class which seem irreducible to any 
rule. These difficulties arise not so 
much from the relative scarcity of partic- 
ular commodities, which it is for the 
most part easy to explain, as from the 
change in manners and in the usual 
mode of living. We have reached in 
this age so high a pitch of luxury, that 
we can hardly believe or comprehend the 
frugality of ancient times ; and have in 
general formed mistaken notions as to 
the habits of expenditure which then 
prevailed. Accustomed to judge of feudal 
and chivalrous ages by works of fiction, 
or by historians who embellished their 
writings with accounts of occasional fes- 
tivals and tournaments, and sometimes 
inattentive enough to transfer the man- 
ners of the seventeenth to the fourteenth 
century, we are not at all aware of the 
usual simplicity with which the gentry 
lived under Edward I. or even Henry 
VI. They drank little wine ; they had 
no foreign luxuries ; they rarely or never 
kept male servants, except for husband- 
ry ; their horses, as we may guess by 
the price, were indifferent ; they seldom 
travelled beyond their county. And 
even their hospitality must have been 
greatly limited, if the value of manors 
were really no greater than we find it in 
many surveys. Twenty-four seems a 
sufficient multiple when we would raise 



* I insert the following comparative table of 
English money from Sir Frederick Eden. The 
unit, or present value, refers of course to that of 
the shilling before the last coinage, which redu- 
ced it. 



Conquest, 
28 E. I., 
18 E. III., 
20 E. III., 
27 E. III., 
I3H. IV., 
4E. IV., 
18 H. VIII. 
34 H. VIII., 

36 H. VIII. 

37 H. VIII., 

5 E. VI., 

6 E. VI., 

1 Mary, 

2 Eliz., 
43 EUz., 





Value of pound 






sterling present 


Proportion 






money 






1066 


2 


18 


U 


2.906 


1300 


2 


17 


5 


2.871 


1344 


2 


12 


5| 


2.622 


1346 


2 


11 


8 


2.583 


1353 


2 


6 


6 


2.325 


1412 


1 


18 


9 


1.937 


1464 


1 


11 





1.55 


,1527 


1 


7 


6i 


1.378 


,1543 


1 


3 


H 


1.163 


, 1545 





13 


lU 


0.698 


,1546 





9 


H 


0.466 


1551 





4 


n 


0.232 


1552 


1 





Gi 


1.028 


1553 


1 





5i 


1.024 


1560 


1 





8 


1.033 


1601 


1 








1.000 



£00 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



a sum mentioned by a writer under Ed- 
ward I. to the same real value expressed 
in our present money, but an income of 
JEIO or jGSO was reckoned a competent 
estate for a gentleman; at least the lord 
of a single manor would seldom have 
enjoyed more. A knight who possessed 
£150 per annum passed for extremely 
rich.* Yet this was not equal in com- 
mand over commodities to £4000 at 
present. But this income was compara- 
tively free from taxation, and its expendi- 
ture lightened by the services of his vil- 
leins. Such a person, however, must 
have been among the most opulent of 
country gentlemen. Sir John Fortescue 
speaks of five pounds a year as " a fair 
living for a yeoman," a class of whom he 
is not at all inclined to diminish the im- 
portance.! So, when Sir William Dru- 
ry, one of the richest men in Suffolk, be- 
queathed in 1493 fifty marks to each of his 
daughters, we must not imagine that this 
was of greater value than four or five 
hundred pounds at this day, but remark 
the family pride, and want of ready 
money, which induced country gentle- 
men to leave their younger children in 
poverty. J Or, if we read that the ex- 
pense of a scholar at the university in 
1514 was but five pounds annually, we 
should err in supposing that he had the 
liberal accommodation which the present 
age deems indispensable, but consider 
how much could be afforded for about 
sixty pounds, which will be not far from 
the proportion. And what would a 
modern lawyer say to the following en- 
try in the churchwarden's accounts of St. 
Margaret, Westminster, for 1476 : " Also 
paid to Roger Fylpott, learned in the 
law, for his counsel giving, 3^. 6d., ivith 
four-pence for his dinner V^ Though 
fifteen times the fee might not seem alto- 
gether inadequate at present, five shillings 
would hardly furnish the table of a bar- 
rister, even if the fastidiousness of our 



* Macpherson's Annals, p. 424, from Matt. 
Paris. 

t Difference of Limited and Absolute Monarchy, 
p. 133. 

X Hist, of Hawsted, p. 141. 

\ NichoUs's Illustrations, p. 2. One fact of this 
class did, I own, stagger me. The great Earl of 
Warwick, writes to a private gentleman, Sir 
Thomas Tudenham, begging the loan of ten or 
twenty pounds to make up a sum he had to pay. 
— Fasten Letters, vol. i., p. 84. What way shall 
we make this commensurate to the present value 
of money ' But an ingenious friend suggested, 
what I do not question is the case, that this was 
one of many letters addressed to the adherents of 
Warwick, in order to raise by their contributions a 
considerable sum. it is curious, in this light, as 
an illustration of manners. 



manners would admit of his accepting 
such a dole. But this fastidiousness, 
which considers certain kinds of remu- 
neration degrading to a man of liberal 
condition, did not prevail in those sim- 
ple ages. It would seem rather strange 
that a young lady should learn needle- 
work and good-breeding in a family of 
superior rank, paying for her board ; yet 
such was the laudable custom of the fif- 
teenth and even sixteenth centuries, as 
we perceive by the Paston Letters, and 
even later authorities.* 

There is one very unpleasing remark 
which every one who attends to Labourers 
the subject of prices will be in- better paid 
duced to make, that the labour- "lan at pre 
ing classes, especially those en- 
gaged in agriculture, were better provided 
with the means of subsistence in the reign 
of Edward HI. or of Henry VI. than they 
are at present. In the fourteenth cen- 
tury. Sir John Cullum observes, a harvest- 
man had fourpence a day, which enabled 
him in a week to buy a comb of wheat; 
but to buy a comb of wheat, a man must 
now (1784) work ten or twelve days.f 
So, under Henry VI., if meat was at a 
farthing and a half the pound, which I 
suppose was about the truth, a labourer 
earning threepence a day, or eighteen 
pence in the week, could buy a bushel of 
wheat at six shillings the quarter, and 
twenty-four pounds of meat for his fam- 
ily. A labourer at present, earning twelve 
shillings a week, can only buy half a 
bushel of wheat at eighty shillings the 
quarter, and twelve pounds of meat at 
sevenpence. Several acts of parliament 
regulate the wages that might be paid to 
labourers of different kinds. Thus the 
statute of labourers, in 1350, fixed the 
wages of reapers during harvest at three- 
pence a day without diet, equal to five shil- 
lings at present ; that of 23 H. VI., c. 12, 
in 1444, fixed the reapers' wages at five- 
pence, and those of common workmen 
in building at 3irf., equal to 65. Sd. and 
45. M. ; that of 11 H. VII., c. 22, in 1496, 
leaves the wages of labourers in harvest 
as before, but rather increases those of 
ordinary workmen. The yearly wages 
of a chief hind or shepherd, by the act of 
1444, were £l. 45., equivalent to about 
£20 ; those of a common servant in hus- 
bandry, 18s. ^d., with meat and drink; 
they were somewhat augmented by the 
statute of 1496.t Yet, although these 

* Paston Letters, vol. i., p. 244. Cullum's 
Hawsted, p. 182. 

t Hist, of Hawsted, p. 228. 

i See these rates more at length in Eden's State 
of the Poor, vol. 1., p. 32, &c. 



Part II.] 



STATE OF SOCIETY. 



501 



wages are regulated as a maximurn, by 
acts of parliament, which may naturally 
be supposed to have had a view rather 
towards diminishing than enhancing the 
current rate, I am not fully convinced 
that they were not rather beyond it ; pri- 
vate accounts at least do not always cor- 
respond with these statutable prices.* 
And it is necessary to remember, that the 
uncertainty of employment, natural to 
so imperfect a state of husbandry, must 
have diminished the labourers' means of 
subsistence. Extreme dearth, not more 
owing to adverse seasons than to improv- 
ident consumption, was frequently en- 
dured, f But, after every allowance of 
this kind, I should find it difficult to resist 
the conclusion, that however the labourer 
has derived benefit from the cheapness 
of manufactured commodities, and from 
many inventions of common utility, he is 
much inferior in ability to support a fam- 
ily to his ancestors three or four centu- 
ries ago. I know not why some have 
supposed that meat was a luxury seldom 
obtained by the labourer. Doubtless he 
could not have procured as much as he 
pleased. But, from the greater cheap- 
ness of cattle, as compared with corn, it 
seems to follow, that a more considera- 
ble portion of his ordinary diet consisted 
of animal food than at present. It was 
remarked by Sir John Fortescue, that the 
English lived far more upon animal diet 
than their rivals the French ; and it was 
natural to ascribe their superior strength 
and courage to this cause. ;}: I should 
feel much satisfaction in being convinced 
that no deterioration in the state of the 
labouring classes has really taken place ; 
yet it cannot, I think, appear extraordi- 
nary to those who reflect, that the whole 
population of England, in the year 1377, 

* In the Archaeologia, vol. xviii., p. 281, we have 
a bailiff's account of expenses in 1387, where it ap- 
pears that a ploughman had sixpence a week, and 
five shillings a year, with an allowance of diet ; 
which seems to have been only pottage. These 
wages are certainly not more than fifteen shiUmgs 
a week, in present value; which, though materially 
above the average rate of agricultural labour, is 
less so than some of the statutes would lead us to 
expect. Other facts may be found of a similar 
nature. 

t See that singular book, Piers Plowman's Vis- 
on, p. 145 (Whitaker's edition), for the different 
aiodes of living before and after harvest. The 
;)assage may be found in Ellis's Specimens, vol. i., 
p. 151. 

X Fortescue's Difference between Abs. and Lim. 
Monarchy, p. 19. The passages in Fortescue 
which bear on his favourite theme, the liberty and 
consequent happmess of the English, are very im- 
portant, and triumphantly refute those superficial 
ATriters who would make us believe that they were 

set of beggarly slaves. 



did not much exceed 2,300,000 souls, 
about one fifth of the results upon the last 
enumeration, an increase with which that 
of the fruits of the earth cannot be sup- 
posed to have kept an even pace.* 

The second head to which I referred 
the improvements of European improve- 
society in the latter period of the mem in the 

.,,,-' ^ , , moral char- 

middle ages, comprehends sev- acterof 

eral changes, not always con- Europe, 
nected with each other, which contributed 
to inspire a more elevated tone of moral 
sentiment, or at least to restrain the com- 
mission of crimes. But the general ef- 
fect of these upon the human character 
is neither so distinctly to be traced, nor 
can it be arranged with so much attention 
to chronology as the progress of com- 
mercial wealth, or of the arts that depend 
upon it. We cannot, from any past ex- 
perience, indulge the pleasing vision of a 
constant and parallel relation between 
the moral and intellectual energies, the 
virtues and the civilization of mankind. 
Nor is any problem connected with phi- 
losophical history more difficult than to 
compare the relative characters of differ- 
ent generations, especially if we include 
a large geographical surface in our esti- 
mate. Refinement has its evils as well 
as barbarism ; the virtues that elevate a 
nation in one century pass in the next to 
a different region ; vice changes its form 
without losing its essence ; the marked 
features of individual character stand out 
in relief from the surface of history, and 
mislead our judgment as to the general 
course of manners ; while political revo- 
lutions and a bad constitution of govern- 
ment may always undermine or subvert 
the improvements to which more favour- 
able circumstances have contributed. In 
comparing, therefore, the fifteenth with 
the twelfth century, no one would deny 
the vast increase of navigation and man- 
ufactures, the superior refinement of 
manners, the greater diffusion of litera- 
ture. But should I assert that man had 
raised himself in the latter period above 
the moral degradation of a more barbar- 
ous age, I might be met by the question 
whether history bears witness to any 
greater excesses of rapine and inhuman- 
ity than in the wars of France and Eng- 
land under Charles VII., or whether the 
rough patriotism and fervid passions of 
tlie Lombards in the twelfth century 



* Besides the books to which I have occasion- 
ally referred, Mr. Ellis's Specimens of English 
Poetry, vol. i., chap. 1.3, contain a short digression, 
but from well-selected materials, on the private life 
of the English in the middling and lower ranks 
about the fifteenth century. 



502 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



were not better than the systematic 
treachery of their servile descendants 
three hundred years afterward. The 
proposition must therefore be greatly 
limited ; yet we can scarcely hesitate to 
admit, upon a comprehensive view, that 
there were several changes during the 
four last of the middle ages, which must 
naturally have tended to produce, and 
some of which did unequivocally produce, 
a meliorating effect, within the sphere of 
their operation, upon the moral character 
of society. 

The first, and perhaps the most impor- 
Eievation of tant of these, was the gradual 
the lower elevation of those whom unjust 
ranks. systems of polity had long de- 

pressed ; of the people itself, as opposed 
to the small number of rich and noble, by 
the abolition or desuetude of domestic 
and predial servitude, and by the privi- 
leges extended to corporate towns. The 
condition of slavery is indeed perfectly 
consistent with the observance of moral 
obligations ; yet reason and experience 
•will justify the sentence of Homer, that 
he who loses his liberty loses half his 
virtue. Those who have acquired, or 
may hope to acquire, property of their 
own, are most likely to respect that of 
others ; those whom law protects as a 
parent are most willing to yield her a 
filial obedience ; those who have much 
to gain by the good- will of their fellow- 
citizens are most interested in the pres- 
ervation of an honourable character. I 
have been led, in different parts of the 
present work, to consider these great 
revolutions in the order of society under 
other relations than that of their moral 
efficacy ; and it will therefore be unne- 
cessary to dwell upon them ; especially 
as this efficacy is indeterminate, though, 
I think, unquestionable, and rather to be 
inferred from general reflections, than 
capable of much illustration by specific 
facts. 

We may reckon, in the next place, 
Police ^"^o"§ t^i^ causes of moral im- 
provement, a more regular admin- 
istration of justice according to fixed 
laws, and a more effectual police. Wheth- 
er the courts of judicature werfc guided 
by the feudal customs or the Roman law, 
it was necessary for them to resolve liti- 
gated questions with preeison and uni- 
formity. Hence a more distinct theory 
of justice and good faith was gradually 
apprehended ; and the moral sentiments 
of mankind were corrected, as on such 
subjects they often require to be, by 
clearer and better grounded inferences 
of reasoning. Again, though it cannot 



be said that lawless rapine was perfectly 
restrained even at the end of the fifteenth 
century, a sensible amendment had been 
everywhere experienced. Private war- 
fare, the licensed. robbery of feudal man- 
ners, had been subjected to so many mor- 
tifications by the kings of France, and es- 
pecially by St. Louis, that it can hardly 
be traced beyond the fourteenth century. 
In Germany and Spain it lasted longer; 
but the various associations for maintain- 
ing tranquillity in the former country had 
considerably diminished its violence be- 
fore the great national measure of public 
peace adopted under Maximilian.* Acts 
of outrage committed by powerful men 
became less frequent as the executive 
government acquired more strength to 
chastise them. We read that St. Louis, 
the best of French kings, imposed a fine 
upon the Lord of Vernon for permitting a 
merchant to be robbed in his territory 
between sunrise and sunset. For, by the 
customary law, though in general ill ob- 
served, the lord was bound to keep the 
roads free from depredators in the day- 
time, in consideration of the toll he receiv- 
ed from passengers.! The same prince 
was with difficulty prevented from passing 
a capital sentence on Enguerrand deCou- 
cy, a baron of France, for a murder.J 
Charles the Fair actually put to death a 
nobleman of Languedoc for a series of 
robberies, notwithstanding the interces- 
sion of the provincial nobility.^ The 
towns established a police of their own 
for internal security, and rendered them- 
selves formidable to neighbouring plun- 

* Besides the German historians, see Du Cange, 
V. Ganerbium, for the confederacies in the empire, 
and Herinandatum for those in Castile. Tiiese 
appear to have been merely voluntary associations, 
and perhaps directed as much towards the preven- 
tion of robbery as of what is strictly called pri- 
vate war. But no man can easily distinguish of- 
fensive war from robbery except by its scale ; and 
where this was so considerably reduced, the two 
modes of injury almost coincide. In Aragon there 
was a distinct institution for the maintenance of 
peace, the kingdom being divided into unions or 
juntas, with a chief officer, called Suprajunctari- 
us, at their head. — Du Cange, v. Juncta. 

t Henault, Abrege Chronol. a Tan 1255. The in- 
stitutions of Louis IX. and his successors relating 
to police, form a part, though rather a smaller part 
than we should expect from the title, of an im- 
mense work, replete with miscGllaneous informa- 
tion, by Delamare, Traite de la Police, 4 vols, in 
folio. A sketch of them may be found in Velly, t. 
v., p. 349 ; t. xviii., p. 4.37. 

t Velly, t. v., p. 162, where this incident is told in 
an interesting manner from William de Nangis. 
Boulainvilliers has taken an extraordinary view of 
the king's behaviour. — Hist, de I'Ancient Gouverne- 
ment, t. li., p. 26. In his eyes princes and plebe- 
ians were made to be the slaves of a feudal aristoc- 
racy. ^ Velly, t. viii., p. 132. 



Part II.] 



STATE OF SOCIETY. 



ao3 



derers. Finally, though not before the 
.reign of Louis XI., an armed force was 
established for the preservation of po- 
lice.* Various means were adopted in 
England to prevent robberies, which in- 
deed were not so frequently perpetrated 
as they were on the continent, by men 
of high condition. None of these, per- 
haps, had so much efficacy as the fre- 
quent sessions of judges under commis- 
sions of jail delivery. But the spirit of 
this country has never brooked that co- 
ercive police which cannot exist without 
breaking in upon personal liberty by irk- 
some regulations and discretionary exer- 
cise of power; the sure instrument of 
tyranny, which renders civil privileges 
at once nugatory and insecure, and by 
which we should dearly purchase some 
real benefits connected with its slavish 
disciphne. 

I have some difficulty in adverting to 
Religious another source of moral im- 
sects. provement during this period, the 
growth of religious opinions adverse to 
those of the established church, both on 
account of its great obscurity, and be- 
cause many of these heresies were mixed 
up with an excessive fanaticism. But 
they fixed themselves so deeply in the 
hearts of the inferior and more numer- 
ous classes, they bore, generally speak- 
ing, so immediate a relation to the state 
of manners, and they illustrate so much 
that more visible and eminent revolution 
■which ultimately arose out of them in the 
sixteenth century, that I must reckon 
these among the most interesting phe- 
nomena in the progress of European so- 
ciet)'-. 

Many ages elapsed, during which no 
remarkable instance occurs of a popular 
deviation from the prescribed line of be- 
lief; and pious Catholics console them- 
selves by reflecting tliat their forefathers, 
in those times of ignorance, slept at least 
the sleep of orthodoxy, and that their 
darkness was interrupted by no false 
lights of human reasoning.! But from 
the twelfth century this can no longer be 
their boast. An inundation of heresy 
broke in that age upon the church, 
which no persecution was able thor- 
oughly to repress, till it finally over- 
spread half the surface of Europe. Of 
this religious innovation we must seek the 
commencement in a diiferent part of the 
globe. The Manicheans afford an emi- 
nent example of that durable attachment 
to a traditional creed, which so many 
ancient sects, especially in the East, have 



Velly, t. xviii., p. 437. 

Fleury, 3"'^ Discours sur I'Hist. Eccles. 



cherished through tlie vicissitudes of 
ages, in spite of persecution and con- 
tempt. Their plausible and widely ex- 
tended system had been in early times 
connected with the name of Christianity, 
however incompatible with its doctrines 
and its history. After a pretty long obscu- 
rity, the Manichean theory revived with 
some modification in the western parts 
of Armenia, and was propagated in the 
eighth and ninth centuries by a sect de- 
nominated Paulicians. Their tenets are 
not to be collected with absolute cer- 
tainty from the mouths of their adversa- 
ries, and no apology of their own sur- 
vives. There seems, however, to be 
sufficient evidence that the Paulicians, 
though professing to acknowledge and 
even to study the apostolical writings, 
ascribed the creation of the world to an 
evil deity, whom they supposed also to 
be the author of the Jewish law, and 
consequently rejected all the Old Testa- 
ment. Believing, with the ancient Gnos- 
tics, that our Saviour was clothed on 
earth with an impassive celestial body,* 
they denied the reaUty of his death 

* The most authentic account of the Paulicians 
is found in a little treatise of Petrus Siculus, who 
lived about 870, under Basil the Macedonian. He 
had been employed on an embassy to Tephrico, 
the principal town of these heretics, so that he 
might easily be well informed ; and, though he is 
sufficiently bigoted, I do not see any reason to ques- 
tion the general truth of his testimony, especially 
as it tallies so well with what we learn of the pre- 
decessors and successors of the Paulicians. They 
had rejected several of the Manichean doctrines, 
those, I believe, which were borrowed from the 
Oriental, Gnostic, and Cabbalistic philosophy of 
emanation; and therefore readily condemned Ma- 
nes, irpodviiu}? avadcfJiaTii^yai Mav;;ra. But they re- 
tained his capital errors, so far as regarded the 
principle of dualism, which he had taken from 
Zerdusht's religion, and the consequences he had 
derived from it. Petrus Siculus enumerates six 
Paulician heresies. 1. They maintained the exist- 
ence of two deities ; the one evil, and the creator 
of this world, the other good, called irar-np cirupano;, 
the author of that which is to come. 2. They re- 
fused to worship the Virgin, and asserted that 
Christ brought his body from Heaven. 3. They 
rejected the Lord's Supper : 4. And the adoration 
of the cross. 5. They denied the authority of the 
Old Testament, but admitted the New, except the 
epistles of St. Peter, and perhaps the Apocalypse. 
6. They did not acknowledge the order of priests. 

There seems every reason to suppose that the 
Paulicians, notwithstanding their mistakes, were 
endowed with sincere and zealous piety, and stu- 
dious of the Scriptures. A Paulician woman asked 
a young man if he had read the Gosj)els ; he replied, 
that laymen were not permitted to do so, but only 
the clergy : hk c^c^lv '/f '" ''<"? KoajiiKoiq uai Tovra 
araj'O'iijo-KCii', fi fuj roif icpcvai /loioi;, p. 57. A curious 
proof that the ScriiUures were already forbidden in 
the Greek church, which, I am inclined to believe, 
notwithstanding the leniency with which Protest- 
ant writers have treated it, was always more cor- 
rupt and more intolerant than the Latin. 



504 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



and resurrection. These errors exposed 
them to a long and cruel persecution, 
during Avhich a colony of exiles was 
planted by one of the Greek emperors in 
Bulgaria.* From this settlement they 
silently promulgated their INIanichean 
creed over the western regions of Chris- 
tendom. A large part of the commerce 
of those countries with Constantinople 
was carried on for several centuries by 
the channel of the Danube. This opened 
an immediate intercourse with the Pau- 
licians, who may be traced up that river 
through Hungary and Bavaria, some- 
times taking the route of Lombardy into 
Swisserland and France. f In the last 



* Gibbon, c. 54. This chapter of the historian 
of the Decline and Fall upon the Paulicians ap- 
pears to be accurate, as well as luminous, and is at 
least far superior to any modern work on the sub- 
ject. 

t It is generally agreed that the Manicheans 
from Bulgaria did not penetrate into the west of 
Europe before the year 1000; and they seem to 
have been in small numbers till about 1140. We 
find them, however, early in the eleventh century. 
Under the reign of Robert, in 1007, several heretics 
were burnt at Orleans for tenets which are repre- 
sented as Manichean. — Velly, t. ii., p. 307. These 
are said to have been imported from Italy ; and the 
heresy began to strike root in that country about 
the same time. — Muratori, Dissert. 60. — (Antichita 
Italiane, t. iii., p. 304.) The Italian Manicheans 
were generally called Paterini, the meaning of 
which word has never been explained. We lind 
few traces of them in France at this time ; but 
about the beginning of the twelfth century, Gui- 
bert, bishop of Soissons, describes the heretics of 
that city, who denied the reality of the death and 
resurrection of Jesus Christ, and rejected the sacra- 
ments. — Hist. Litteraire de la France, t. x., p. 451. 
Before the middle of that age, the Cathari, Henri- 
cians, Petrobussians, and others appear, and the 
new opinions attracted universal notice. Some of 
these sectaries, however, were not Manicheans. — 
Mosheim, vol. iii., p. 116. 

The acts of the inquisition of Toulouse, pub- 
lished by Limborch, from an ancient manuscript 
(stolen, as I presume, though certainly not by him- 
self, out of the archives of that city), contain many 
additional proofs that the Albigenses held the 
Manichean doctrine. Limborch himself will guide 
the reader to the principal passages, p. 30. In 
fact, the proof of Manicheism among the heretics 
of the twelfth century is so strong (for I have con- 
fined myself to those of Languedoc, and could 
easily have brought other testimony as to the 
Cathari), that I should never have thought of ar- 
guing the point, but for the confidence of some 
modern ecclesiastical writers. What can we think 
of one who says, " It was not unusual to stigmatize 
new sects with the odious name of Manichees, 
though / know no evidence that there were any real 
remains of that ancient sect in the twelfth cen- 
tury." — Milner's History of the Church, vol. iii., p. 
3S0. Though this writer was by no means learn- 
ed enough for the task he undertook, he could not 
be ignorant of facts related by Mosheim and other 
common historians. 

I will only add, in order to obviate cavilling, 
that I use the word Albigenses for the Manichean 
sects, without pretending to assert that their doc- 



country, and especially in its southern 
and eastern proviirces, they became 
conspicuous under a variety of names ; 
such as Catharists, Picards, Paterins, but, 
above all, Albigenses. It is beyond a 
doubt that many of these sectaries owed 
tlieir origin to the Paulicians ; the appel- 
lation of Bulgarians was distinctively be- 
stowed upon them ; and, according to 
some writers, they acknowledged a pri- 
mate or patriarch resident in that coun- 
try.* Tlie tenets ascribed to them by all 
contemporary authorities coincide so re- 
markably witli those held by the Pauli- 
cians, and in earlier times by the Mani- 
cheans, that I do not see how we can 
reasonably deny what is confirmed by 
separate and uncontradictory testimo- 
nies, and contains no intrinsic want of 
probability.! 



trines prevailed more in the neighbourhood of Albi 
than elsewhere. The main position is, that a large 
part of the Languedocian heretics against whom 
the crusade was directed had imbibed the Pauli- 
cian opinions. If any one chooses rather to call 
them Catharists, it will not be material. 

* Mat. Paris, p. 267. (A. D. 1223.) Circa dies 
istos, haeretici Albigenses constituerunt sibi An- 
tipapam in finibus Bulgarorum, Croatise et Dal- 
matiae, nomine Bartholomaeum, &c. We are as- 
sured by good authorities that Bosnia was full of 
Manicheans and Arians as late as the middle of the 
fifteenth century. — ^neas Sylvius, p. 407. Spon- 
danus, ad ann. 1460. Mosheim. 

t There has been so prevalent a disposition 
among English divines to vindicate not only the 
morals and sincerity, but the orthodoxy of these 
Albigenses, that I deem it necessary to confirm 
what I have said in the text by .some authorities, 
especially as few readers have it in their power to 
examine this very obscure subject. Petrus Mo- 
nachus, a Cistercian monk, who wrote a history of 
the crusades against the Albigenses, gives an ac- 
count of the tenets maintained by the different 
heretical sects. Many of them asserted two prin- 
ciples or creative beings ; a good one for things 
invisible, an evil one for things visible ; the former 
author of the New Testament, the latter of the 
Old. Novum Testamentum benigno deo, vetus 
vero maligno attribuebant ; et illud omnino repu- 
diabant, prseter quasdam auctoritates, quas de Ve- 
teri Testamento, Novo sunt insertoe, quas ob Novi 
reverentiam Testamenti, recipere dignum Kstiina- 
bant. A vast number of strange errors are imputed 
to them, most of which are not mentioned by Ala- 
nus, a more dispassionate writer. — Du Chesne, 
Scriptores Francorum, t. v., p. 556. This Alanus 
de Insulis, whose treatise against heretics, written 
about 1200, was published by Masson at Lyons in 
1612, has left, I think, conclusive evidence of the 
Manicheism of the Albigenses. He slates their ar- 
gument upon every disputed point as fairly as pos- 
sible, though his refutation is of course more at 
length. It appears that great discrepances of 
opinion existed among these heretics, but the gen- 
eral tenour of their doctrines is evidently Mani- 
chean. Aiunt hsretici temporis nostri quod duo 
sunt principia rerum, principium lucis et principium 
tenehrarum, &c. This opinion, strange as we may 
think it, was supported by Scriptural texts; so in 
sufficient is a mere acquaintance with the sacred 
writings to secure unlearned and prejudiced minds 



Part II.] 



STATE OF SOCIETY. 



505 



But though the derivation of these her- 
etics called Albigenses from Bulgaria is 
sufficiently proved, it is by no means to 
be concluded that all who incurred the 
same imputation either derived their faith 
from the same country, or had adopted 
the Manichean theory of the Paulicians. 
From the very invectives of their ene- 
mies, and the acts of the inquisition, it is 
manifest that almost every shade of het- 
erodoxy was found among these dissi- 
dents, till it vanished in a single protest- 
ation against the wealth and tyranny of 
the clergy. Those who were absolutely 
free from any taint of Manicheism are 
properly called Waldenses ; a name per- 
petually confounded in later times with 
that of Albigenses, but distinguishing a 
sect probably of separate origin, and at 
least of different tenets. These, according 
Waldenses. ^° ^^^ majority of writers, took 
their appellation from Peter 
Waldo, a merchant of Lyons, the parent, 
about the year 1160, of a congregation of 
seceders from the church, who spread 
very rapidly over France and Germany.* 

from the .wildest perversions of their meaning ! 
Some denied the reality of Christ's body ; others 
his being the Son of God ; many the resurrection 
of the body ; some even of a future state. They 
asserted in general the Mosaic law to have pro- 
ceeded from the devil, proving this by the crimes 
committed during its dispensation, and by the words 
of St. Paul, " the law entered that sin might 
abound." They rejected infant baptism, but were 
divided as to the reason ; some saying that infants 
could not sin, and did not need baptism ; others, 
that they could not be saved without faith, and 
consequently that it was useless. They held sin 
after baptism to be irremissible. It does not appear 
that they rejected either of the sacraments. They 
laid great stress upon the imposition of hands, 
which seems to have been their distinctive rite. 

One circumstance, which both Alanus and Rob- 
ertus Monachus mention, and which other author- 
ities confirm, is their division into two classes ; the 
Perfect, and the Credentes, or Consolati, both of 
which appellations are used. The former abstain- 
ed from animal food and from marriage, and led in 
every respect an austere life. The latter were a 
kind of lay brethren, living in a secular mann.er. 
This distinction is thoroughly Manichean, and 
leaves no doubt as to the origin of the Albigenses. 
See Beausobre, Hist, du Manicheisme, t. li., p. 
762 and 777. This candid writer represents the 
early Manicheans as a harmless and austere set 
of enthusiasts, exactly what the Paulicians and 
Albigenses appear to have been in succeeding ages. 
As many calumnies were vented against one as the 
Other. 

* The contemporary writers seem uniformly to 
represent Waldo as the founder of the Waldenses ; 
and I am not aware that they refer the locality of 
that sect to the valleys of Piedmont, between Ex- 
iles and Pignerol (see Leger's map), which have 
60 long been distinguished as the native country of 
the Vaudois. In the acts of the inquisition, we 
find Waldenses, sive pauperes de Lugduno, used 
as equivalent terms ; and it can hardly be doubted 
that the poor men of Lyons were the disciples of 
Walilo. Alanus, the second book of whose treatise 



According to others, the original Wal- 
denses were a race of uncorrupted shep- 
herds, who, in the valleys of the Alps, 
had shaken off, or perhaps never learned, 
the system of superstition on which the 
Catholic church depended for its ascend- 
ency. I am not certain whether their 
existence can be distinctly traced beyond 
the preaching of Waldo, but it is well 
known that tRe proper seat of the AVal- 
denses or Vaudois has long continued to 
be in certain valleys of Piedmont. These 
pious and innocent sectaries, of whom 
the very monkish historians speak well, 
appear to have nearly resembled the 
modern Moravians. They had ministers 
of their own appointment, and denied 
the lawfulness of oaths and of capital 



against heretics is an attack upon the Waldenses, 
expressly derives them from Waldo. Petrus Mo 
nachus does the same. These seem strong author 
ities, as it is not easy to perceive what advantage 
they could derive from misrepresentation. It has 
been, however, a position zealously maintained by 
some modern writers of respectable name, that the 
people of the valleys had preserved a pure faith 
for several ages before the appearance of W-aldo. 
I have read what is advanced on this head by Le- 
ger (Histoire des Eglises Vaudoises), and by Allix 
(Remarks on the Ecclesiastical History of the 
Churches of Piedmont), but without finding any 
sufficient proof for this supposition, which, never- 
theless, is notto be rejected as absolutely improb- 
able. Their best argument is deduced from an an- 
cient poem called La Noble Loicjon, an original 
manuscript of which is in the public library of 
Cambridge. This poem is alleged to bear date in 
1100, more than half a century before the appear- 
ance of Waldo. But the lines that contain the 
date are loosely expressed, and may very well suit 
with any epoch before the termination of the 
twelfth century. 

Ben ha mil et cent ans compli entierament 
Che fu scritta loro que sen al derier temp. 
Eleven hundred years are now gone and past, 
Since thus it was written ; these times are the last. 
I have found, however, a passage in a late work, 
which remarkably illustrates the antiquity of Al- 
pine protestantism, if we may depend on the date 
it assigns to the quotation. Mr. Planta's History 
of Swisserland, p. 93, 4to edit., contains the follow- 
ing note. " A curious passage, singularly descrip- 
tive of the character of the Swiss, has lately been 
discovered in a MS. chronicle of the abbey of Cor- 
vey, which appears to have been written about the 
beginning of the twelfth century. Religionem nos- 
tram, et omnium Latinae ecclesiae Christianorunj 
fidem, laici ex Suavia, Suicia, et Bavaria humiliare 
voluerunt ; homines seducti ab antiqiia progenie 
simplicium hominum, qui Alpes et viciniam habi- 
tant, et semper amant antiqua. In Suaviam, Ba- 
variam et Italiam borealem sanpe intrant illorum 
(ex Suicia) mercatores, qui biblia ediscunt memo- 
riter, et ritus ecclesiae aversantur, quos credunt esse 
novos. Nolunt imagines venerari, reliquias sanc- 
torum aversantur, olera comedunt, raro mastican- 
tes camem, alh nunquam. Appellamus eos idcir- 
co Manichffios. Horum quidam ab Hungaria ad 
eos convenerunt," &c. It is a pity that the quota- 
tion has been broken off, as it might have illus- 
trated the connexion of the Bulgarians with these 
sectaries. 



506 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



punisliment. In other respects their 
opinions probably were not far removed 
from those usually called Protestant. 
A simplicity of dress, and especially 
the use of wooden sandals, was affect- 
ed by this people.* 

I have already had occasion to relate 
the severe persecution which nearly ex- 
terminated the Albigenses of Languedoc 
at the close of the twelfth century, and 
involved the counts of Toulouse in their 
ruin. The Catharists, a fraternity of the 
same Paulician origin, more dispersed 
than the Albigenses, had previously sus- 
tained a similar trial. Their belief Avas 
certainly a compound of strange errors 
with truth ; but it was attended by quali- 
ties of a far superior lustre to orthodoxy, 
by a sincerity, a piety, and a self-devo- 
tion, that almost purified the age in which 
they lived. t It is always important to 

* The Waldenses were always considered as 
much less erroneous in their tenets than the Albi- 
genses or Manicheans. Erant prseterea alii haere- 
tici, says Robert Monachus in the passage above 
quoted, qui Waldenses dicebantur, a quodam Wal- 
dio nomine Lugdunensi. Hi quidem mali erant, 
sed comparatione aliorum haereticorum longe mi- 
nus perversi; ill multis enirn nobiscum convenie- 
bant, in quibusdam dissentiebant. The only faults 
he seems to impute to them are the denial of the 
lawfulness of oaths and capital punishment, and 
the wearing wooden shoes. By this peculiarity of 
wooden sandals (sabots) they got the name of 
Sabbatati or Insabbatati. — (Du Cange.) William 
du Puy, another historian of the same time, makes 
a similar distinction. Erant quidam Ariani, qui- 
dam Manichaei, quidam etiam Waldenses sive Lug- 
dunenses, qui licet inter se dissides, omnes tamen 
in animarum perniciem contra fidem Catholicam 
conspirabant ; et illi quidem Waldenses contra ali- 
os acutissim^ disputant. — Du Chesne, t. v., p. 666. 
Alanus, in his second book, where he treats of the 
Waldenses, charges them principally with disre- 
garding the authority of the church and preaching 
without a regular mission. It is evident, however, 
from the acts of the Inquisition, that they denied 
the existence of purgatory ; and I should suppose 
that, even at that time, they had thrown off most 
of the popish system of doctrine, which is so near- 
ly connected with clerical wealth and power. The 
difference made in these records between the Wal- 
denses and tlie Manichean sects, shows that the 
imputations cast upon the latter were not indiscrim- 
inate calumnies. See Limborch, p. 201 and 228. 

The History of Languedoc, by Vaissette and 
Vich, contains a very good account of the secta- 
ries in that country ; but I have not immediate ac- 
cess to the book. I believe that proof will be 
found of the distinction between the Waldenses 
and Albigenses in t. iii., p. 4G6. But I am satisfied 
that no one who has looked at the original author- 
ities will dispute the proposition. These Benedic- 
tin historians represent the Henricians, an early 
sect of reformers, condemned by the council of 
Lombez, in 1165, as Manichees. Mosheim consid- 
ers them as of the Vaudois school. They appeared 
some time before Waldo. 

t The general testimony of their enemies to the 
purity of morals among the Languedocian and 
Ly nese sectaries is abundantly sufficient. One 



perceive that these high moral excellen- 
ces have no necessary connexion with 
speculative truths ; and upon this account 
I have been more disposed to state ex- 
plicitly the real Manicheism of the Albi- 
genses ; especially as Protestant writers, 
considering all the enemies of Rome as 
their friends, have been apt to place the 
opinions of these sectaries in a very false 
light. In the course of time, undoubtedly, 
the system of their Paulician teachers 
would have yielded, if the inquisitors had 
admitted the experiment, to a more ac- 
curate study of the Scriptures, and to the 
knowledge which they would have im- 
bibed from the church itself. And, in 
fact, we find that the peculiar tenets of 
Manicheism died away after the middle 
of the thirteenth century, although a 
spirit of dissent from the established 
creed broke out in abundant instances 
during the two subsequent ages. 

We are in general deprived of explicit 
testimonies in tracing the revolutions of 
popular opinion. Much must therefore 
be left to conjecture ; but I am inclined 
to attribute a very extensive effect to the 
preaching of these heretics. They ap- 
pear in various countries nearly during 
the same period, in Spain. Lombardy, 
Germany, Flanders, and England, as well 
as France. Thirty unhappy persons con- 
victed of denying the sacraments, are 
said to have perished at Oxford by cold 



Regnier, who had lived among them, and became 
afterward an inquisitor, does them justice in this 
respect. — See Turner's History of England for sev- 
eral other proofs of this. It must be confessed, 
that the Catharists are not free from the imputa.- 
tion of promiscuous licentiousness. But whether 
this was a mere calumny, or partly founded upon 
truth, I cannot determine. Their prototypes, the 
ancient Gnostics, are said to have been divided 
into two parties, the austere and the relaxed ; both 
condemning marriage for opposite reasons. Ala- 
nus, in the book above quoted, seems to have 
taken up several vulgar prejudices against the 
Cathari. He gives an etymology of their name 
a catta; quia osculantur posteriora catti ; in cujus 
specie, ut aiunt, appareretiis Lucifer, p. 146. This 
notable charge was brought afterward against the 
Templars. 

As to the Waldenses, their innocence is out of 
all doubt. No book can be written in a more edi- 
fying manner than La Noble Loigon, of which large 
extracts are given by Leger, in his Histoire des 
Eglises Vaudoises. Four lines are quoted by Vol- 
taire (Hist. Universelle, c. 69) as a specimen of 
the Provencal language, though they belong rather 
to the patois of the valleys. But as he lias not 
copied them rightly, and as they illustrate the sub- 
ject of this note, I shall repeat them here from 
Leger, p. 28. 
Que sel se troba alcun bon que vollia amar Dio 

e terner Jeshu Xrist, 
Que non vollia maudire, ni jura, ni mentir, 
Ni avoutrar, ni aucire, ni penre de I'autruy, 
Ni venjar se de li sio ennemie, 
Illi dison quel es Vaudes e degne de murir. 



Part II.] 



STATE OF SOCIETY. 



607 



and famine in the reign of Henry II. 
In every country the new sect^ appear 
to have spread chiefly among the lower 
people, which, while it accounts for the 
imperfect notice of historians, indicates 
a more substantial influence upon the 
moral condition of society than the con- 
version of a few nobles or ecclesiastics.* 
But even where men did not absolutely 
enlist under the banners of any new sect, 
they were stimulated by the temper of 
their age to a more zealous and inde- 



* It would be difficult to specify all the dispersed 
authorities which attest the existence of the sects 
derived from the Waldenses and Paulicians in the 
twelfth, thirteenth, and fourteenth centuries. Be- 
sides Mosheim, ,who has paid considerable atten- 
tion to the subject, I would mention some articles 
in Du Cange which supply gleanings; namely, 
Beghardi, Bulgari, LoUardi, Paterini, Picardi, Pifli, 
Populicani. 

Upon the subject of the Waldenses and Albi- 
genses generally, I have borrowed some hght from 
Mr. Turner's History of England, vol. ii., p. 377, 
393. This learned writer has seen some books that 
have not fallen into my way ; and I am indebted to 
him for a knowledge of Alanus's treatise, which I 
have since read. At the same time I must observe, 
that Mr. Turner has not perceived the essential 
distinction between the two leading sects. 

The name of Albigenses does not frequently 
occur after the middle of the thirteenth century ; 
but the Waldenses, or sects bearing that denomi- 
nation, were dispersed over Europe. As a term 
of different reproach was derived from the word 
Bulgarian, so vauderie, or the profession of the 
Vaudois, was sometimes applied to witchcraft. 
Thus, in the proceedings of the Chambre Brulante 
at Arras, in 1459, against persons accused of sor- 
cery, their crime is denominated vauderie. The 
fullest account of this remarkable story is found in 
the Memoirs of Du Clercq, first published in the 
general collection of Historical Memoirs, t. ix., p. 
430, 471. It exhibits a complete parallel to the 
events that happened in 1682 at Salem, in New- 
England. A few obscure persons were accused of 
vauderie, or witchcraft. After their condemnation, 
which was founded on confessions obtained by tor- 
ture, and afterward retracted, an epidemical conta- 
gion of superstitious dread was diffused all around. 
Numbers were arrested, burnt alive by order of a 
tribunal instituted for the detection of this offence, 
or detained in prison ; so that no person in Arras 
thought himself safe. It was believed that rnany 
were accused for the sake of their possessions, 
which were confiscated to the use of the church. 
At length the Duke of Burgundy interfered, and 
put a stop to the persecutions. The whole narra- 
tive in Du Clercq is interesting, as a curious docu- 
ment of the tyranny of bigots, and of the facility 
with which it is turned to private ends. 

To return to the Waldenses : the principal course 
of their emigration is said to have been into Bohe- 
mia, where, in the fifteenth century, the name was 
borne by one of the seceding sects. By their pro- 
fession of faith, presented to Ladislaus Posthumus, 
it appears that they acknowledged the corporal pres- 
ence in the eucharist, but rejected purgatory and 
other Romish doctrines. See it in the Fasciculus 
Rerum expetendarum et fugiendarum, a collection 
of treatises illustrating the origin of the Reforma- 
tion, originally published at Cologne in 1535, and 
reprinted at London in 1690. 



pendent discussion of their religious sys- 
tem. A curious illustration of this is 
furnished by one of the letters of Inno- 
cent III. He had been informed by the 
Bishop of Metz, as he states to the clergy 
of the diocess, that no small multitude of 
laymen and women having procured a 
translation of the gospels, epistles of St. 
Paul, the psalter. Job, and other booksf 
of Scripture, to be made for them into 
French, meet in secret conventicles to 
hear them read, and preach to each other, 
avoiding the company of those who do 
not join in their devotion, and having 
been reprimanded for this by some of 
their parish priests, have withstood them, 
alleging reasons from the Scriptures why 
they should not be so forbidden. Some 
of them too deride the ignorance of their 
ministers, and maintain that their own 
books teach them more than they can 
learn from the pulpit, and that they can 
express it better. Although the desire 
of reading the Scriptures, Innocent pro- 
ceeds, is rather praiseworthy than rep- 
rehensible, yet they are to be blamed for 
frequenting secret assemblies, for usurp- 
ing the office of preaching, deriding their 
own ministers, and scorning the company 
of such as do not concur in their novel- 
ties. He presses the bishop and chap- 
ter to discover the author of this trans- 
lation, which could not have been made 
without a knowledge of letters, and what 
were his intentions, and what degree of 
orthodoxy and respect for the Holy See 
those who used it possessed. This let- 
ter of Innocent HI., however, consider- 
ing the nature of the man, is sufficiently 
temperate and conciliatory. It seems 
not to have answered its end; for in 
another letter he complains that some 
members of this little association con- 
tinued refractory, and refused to obey 
either the bishop or the pope.* 

In the eighth and ninth centuries, 
when the Vulgate had ceased to be gen- 
erally intelligible, there is no reason to 
suspect any intention in the church to 
deprive the laity of the Scriptures. 
Translations were freely made into the 
vernacular languages, and perhaps read 
in churches, although the acts of saints 
were generally deemed more instructive. 
Louis the Debonair is said to have 
caused a German version of the New 
Testament to be made. Otfrid, in the 
same century, rendered the gospels, or 

* Opera Innocent. III., p. 468 537. A transla- 
tion of the Bible had been made by direction of 
Peter Waldo; but whether this used in Lorrain 
was the same, docs not appear. Metz was full of 
the Vaudois, as we find by other authorities. 



508 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



rather abridged them, into German verse. 
This work is still extant, and is in sev- 
eral respects an object of curiosity.* In 
the eleventh or twelfth century, we find 
translations of the Psalms, Job, and the 
Maccabees into French. f But after the 
diffusion of heretical opinions, or, what 
was much the same thing, of free inquiry, 
it became expedient to secure the ortho- 
dox faith from lawless interpretation. 
Accordingly the council of Toulouse, in 
1229, prohibited the laity from posses- 
sing the Scriptures ; and this precaution 
was frequently repeated upon subsequent 
occasions. 

The ecclesiastical history of the thir- 
teenth or fourteenth centuries teems 
with new sectaries and schismatics, va- 
rious in their aberrations of opinion, but 
all concurring in detestation of the estab- 
lished church.J They endured severe 
persecutions with a sincerity and firm- 
ness which in any cause ought to com- 
mand respect. But in general we find 
an extravagant fanaticism among them ; 
and I do not know how to look for any 
amelioration of society from the Fran- 
ciscan seceders, who quibbled about the 
property of things consumed by use, or 
from the mystical visionaries of different 
appellations, whose moral practice was 
sometimes more than equivocal. Those 
who feel any curiosity about such sub- 
jects, which are by no means unimpor- 
tant, as they illustrate the history of the 
human mind, will find them treated very 
fully by Mosheim. But the original 
sources of information are not always 
accessible in this country, and the re- 
search would perhaps be more fatiguing 
than profitable. 

I shall, for an opposite reason, pass 
Lollards of lightly ovcr the great revolution 
England, j^ religious Opinion wrought in 
England by Wicliffe, which will gen- 
erally be familiar to the reader from our 
common histoi^ians. Nor am I concern- 
ed to treat of theological inquiries, or to 
write a history of the church. Consid- 
ered in its effect upon manners, the sole 
point which these pages have in view, 
the preaching of this new sect certainly 



* Schilteri Thesaurus Antiq. Teutonicorum, 
t. ii. 

t Mem. de I'Acad. des Inscript., t. xvii., p. 720. 
i The application of the visions of the Apoca- 
lypse to the corruptions of Rome has commonly 
been said to have been first made by the Francis- 
can seceders. But it may be traced higher, and is 
remarkably pointed out by Dante. 

Di voi pastor s' accorse 'I Vangelista, 
Quando colei, chi siede sovra 1' acque, 
Puttaneggiar co' regi a lui fii vista. 

Inferno, cant. xix. 



produced an extensive reformation. But 
their virtues were by no means free from 
s'ome unsocial qualities, in which, as 
well as in their superior attributes, the 
Lollards bear a very close resemblance 
to the Puritans of Ehzabeth's reign : a 
moroseness that proscribed all cheerful 
amusements, an uncharitable malignity 
that made no distinction in condemning 
the established clergy, and a narrow pre- 
judice that applied the rules of the Jew- 
ish law to modern institutions.* Some 
of their principles were far more danger- 
ous to the good order of society, and 
cannot justly be ascribed to the Puritans, 
though they grew afterward out of the 
same soil. Such was the notion, which 
is imputed also to the Albigenses, that 
civil magistrates lose their right to gov- 
ern by committing sin, or, as it was quaint- 
ly expressed in the seventeenth century, 
that dominion is founded in grace. These 
extravagances, however, do not belong 
to the learned and politic Wicliffe, how- 
ever they might be adopted by some of 
his enthusiastic disciples. f Fostered by 
the general ill-will towards the church, 
his principles made vast progress in 
England, and, unlike those of earlier 
sectaries, were embraced by men of 
rank and civil influence. Notwithstand- 
ing the check they sustained by the san- 
guinary law of Henry IV., it is highly 
probable that multitudes secretly cherish- 
ed them down to the era of the Reform- 
ation. 

From England the spirit of religious 
innovation was propagated into Hussites of 
Bohemia ; for though John Huss «oti«mia. 
was very far from embracing all the doc- 
trinal systems of Wicliffe, it is manifest 
that his zeal had been quickened by the 



* Walsingham, p. 238. Lewis's Life of Pea- 
cock, p. 65. Bishop Peacock's ansvi^erto the Lol- 
lards of his time contains passages well worthy of 
Hooker, both for weight of matter and dignity of 
style, setting forth the necessity and importance of 
" the moral law of kinde, or moral philosophic, " irj 
opposition to those who derive all moraJity from 
revelation. 

This great man fell afterward under the dis- 
pleasure of the church for propositions, not indeed 
heretical, but repugnant to her scheme of spiritual 
power. He asserted indirectly the right of pri- 
vate judgment, and wrote on theological subjects 
in English, which gave much offence. In fact, 
Peacock seems to have hoped that his acute rea- 
soning would convince the people, without requi- 
ring an implicit faith. But he greatly misunder- 
stood the principle of an infallible church. Lew- 
is's Life of Peacock does justice to his character, 
which, I need not say, is unfairly represented by 
such historians as Collier, and such antiquaries as 
Thomas Hearne. 

t Lewis's Life of Wicliffe, p. 115. Lenfant, 
Hist, du Concilede Constance, t. i., p. 213 



Part II.J 



STATE OF SOCIETY. 



500 



writings of that reformer.* Inferior to 
the Englishman in ability, but exciting 
greater attention by his constancy and 
sufferings, as well as by the memorable 
war which his ashes kindled, the Bohe- 
mian martyr was even more eminently 
the precursor of the Reformation. But 
still regarding these dissensions merely in 
a temporal light, I cannot assign any ben- 
eficial effect to the schism of the Hussites, 
at least in its immediate results, and in 
the country where it appeared. Though 
some degree of sympathy with their 
cause is inspired by resentment at the ill 
faith of their adversaries, and by the as- 
sociations of civil and religious liberty, 
we cannot estimate the Taborites and 
other sectaries of that description but as 
ferocious and desperate fanatics. f Per- 
haps beyond the confines of Bohemia, 
more substantial good may have been 
produced by the influence of its reforma- 
tion, and a better tone of morals inspired 
into Germany. But I must again repeat, 
that upon this obscure and auduguous 
subject I assert nothing definiW^, and 
little with confidence. The tendencies 
of religious dissent in the four ages be- 
fore the Reformation appear to have gen- 
erally conduced towards the moral im- 
provement of mankind; and facts of this 
nature occupy a far greater space in a 
philosophical view of society during that 
period than we might at first imagine ; 
but every one Avho is disposed to prose- 
cute this inquiry will assign their charac- 
ter according to the result of his own 
investigations. 

But the best school of moral discipline 
Insiitiuion which the middle ages afforded 
of chivalry, was the institution of chivalry. 
There is something perhaps to allow for 
the partiahty of modern writers upon this 
interesting subject; yet our most skepti- 
cal criticism must assign a decisive influ- 
ence to this great source of human im- 
provement. The more deeply it is con- 
sidered, the more we shall become sensi- 
ble of Its importance. 

There are, if I may so say, three pow- 

* Huss does not appear to have rejected any of 
the peculiar tenets of popery. — Lenfant, p. 414. He 
embraced, like WiclifFe, the predestinarian system 
of Augustin, without pausing at any of those mfer- 
ences, apparently deducible from it, which, in the 
heads of enthusiasts, may produce such extensive 
mischief. These were maintained by Huss (id., p. 
328), though not perhaps so crudely as by Luther. 
Every thmg relative to the history and doctrine of 
Huss and his followers will be found in Lenfant's 
three works, on the councils of Pisa, Constance, 
and Basle. 

t Lenfant, Hist, de la Guerre des Hussites et du 
Concile de Basle. — Schmidt, Hist, des Allemands, 
t. V 



erful spirits, which have from time to 
time moved over the face of the waters, 
and given a predominant impulse to the 
moral sentiments and energies of man- 
kind. These are the spirits of liberty, of 
religion, and of honour. It was the prin- 
cipal business of chivalry to animate and 
cherish the last of these three. And 
whatever high magnanimous energy the 
love of liberty or religious zeal has ever 
imparted, was equalled by the exquisite 
sense of honour which this institution 
preserved. 

It appears probable, that the custom of 
receiving arms at the age of j^^ (,rjgj„ 
manhood with some solemnity, 
was of immemorial antiquity among the 
nations that overthrew the Roman em- 
pire. For it is mentioned by Tacitus to 
have prevailed among their German an- 
cestors ; and his expressions might have 
been used with no great variation to de- 
scribe the actual ceremonies of knight- 
hood.* There was even in that remote 
age a sort of public trial as to the fitness 
of the candidate, which, though perhaps 
confined to his bodily strength and activi- 
ty, might be the germe of that refined in 
vestigation which was thought necessary 
in the perfect stage of chivalry. Proofs, 
though rare and incidental, might be ad 
duced to show, that in the time of Charle- 
magne, and even earlier, the sons of 
monarchs at least did not assume manly 
arms without a regular investiture. And 
in the eleventh century, it is evident that 
this was a general practice. f 

This ceremony, however, would per- 
haps of itself have done little towards 
forming that intrinsic principle which 
characterized the geimine chivalry. But 
in the reign of Charlemagne we find a 
military distinction, that appears, in fact 
as well as in name, to have given birth to 
that institution. Certain feudal tenants, 
and I suppose also allodial proprietors, 
were bound to serve on horseback, 
equipped with the coat of mail. These 
were called Caballarii, from which the 
word chevaliers is an obvious corrup- 

* Nihil neque publicae neque privatae rei nisi ar- 
mati agunt. Sed arma sumere non ante cuiquam 
moris, quam civitas suffecturum probaverit. Turn 
in ipso concilio, vel principum aliquis, vel pater, 
vel propinquus scuto frameAque jnveiiem ornant ; 
haec apud eos toga, hie primus juventaj honos ; ante 
hoc domus pars videntur, mox reipublicEe. — De 
Moribus German., c. 13. 

t William of Malmabury says that Alfred con- 
ferred knighthood on Athelstan, donatijin chla- 
myde coccinea, gemmato balteo, ense Saxonico 
cumvaginaaurea, 1. li., c. 6. St. Palaye(Memoire8 
sur la Chevalerie, p. 2) mentions other instances ; 
which may also be found in l)u Cange's Glossary, 
V. Arma, and in his 22d dissertation on Joinville. 



510 



EUROPE DURING THE MIDDLE AGE3. 



[Chap. IX 



tion.* But he who fought on horseback, 
and had been invested with peculiar arms 
in a solemn manner, wanted nothing 
more to render him a knight. Chivalry 
therefore may, in a general sense, be re- 
ferred to the age of Charlemagne. We 
may however go farther, and observe 
that these distinctive advantages above 
ordinary combatants were probably the 
sources of that remarkable valour and 
that keen thirst for glory which became 
the essential attributes of a knightly 
character. For confidence in our skill 
and strength is the usual foundation of 
courage : it is by feeling ourselves able 
to surmount common dangers, that we 
become adventurous enough to encounter 
those of a more extraordinary nature, 
and to which more glory is attached. 
The reputation of superior personal 
prowess, so difficult to be attained in the 
course of modern warfare, and so liable 
to erroneous representations, was al- 
ways within the reach of the stoutest 
knight, and was founded on claims 
which could be measured with much ac- 
curacy. Such is the subordination and 
mutual dependance in a modern army, 
that every man must be content to divide 
his glory with his comrades, his general, 
or his soldiers. But the soul of chivalry 
was individual honour, coveted in so en- 
tire and absolute a perfection, that it 
must not be shared with an army or a 
nation. Most of the virtues it inspired 
were what we may call independent, as 
opposed to those which are founded upon 
social relations. The knights-errant of 
romance perform their best exploits from 
the love of renown, or from a sort of ab- 
stract sense of justice, rather than from 
any solicitude to promote the happiness 
of mankind. If these springs of action 
are less generally beneficial, they are, 
however, more connected with elevation 
of character than the systematic pru- 
dence of men accustomed to social hfe. 
This solitary and independent spirit of 
chivalry, dwelling, as it were, upon a 
rock, and disdaining injustice or false- 
hood from the consciousness of internal 
dignity, without any calculation of their 
consequences, is not unlike what we 
sometimes read of Arabian chiefs or the 
North American Indians. f These na- 



* Comites et vassalli nostri qui beneficia habere 
noscuntur, et caballarii omnes ad placitum nostrum 
veniant bene preparati.— Capitularia, A. D. 807, 
In Baluze, t. i., p. 460. 

t We must take for this the more favourable 
represantations of the Indian nations.- A deteri- 
otating intercourse with Europeans, or a race of 
European extraction, has tended to efface those 



tions, so widely remote from each other, 
seem to partake of that moral energy, 
which, among European nations, far re- 
mote from both of them, was excited by 
the spirit of chivalry. But the most 
beautiful picture that was ever portrayed 
of this character is the Achilles of Ho- 
mer, the representative of chivalry in its 
most general form, with all its sincerity 
and unyielding rectitude, all its courte- 
sies and munificence. Calmly indifler- 
ent to the cause in which he is engaged, 
and contemplating with a serious and 
unshaken look the premature death that 
awaits him, his heart only beats for glory 
and friendship. To this sublime charac- 
ter, bating that imaginary completion by 
which the creations of the poet, like 
those of the sculptor, transcend all single 
works of nature, there were probably 
many parallels in the ages of chivalry . 
especially before a set education and the 
refinements of society had altered a little 
the natural unadulterated warrior of a ru- 
der period. One illustrious example from 
this eafter age is the Cid Ruy Diaz, 
whose history has fortunately been pre- 
served much at length in several chroni- 
cles of ancient date, and in one valuable 
poem ; and though I will not say that the 
Spanish hero is altogether a counterpart 
of Achilles in gracefulness and urbanity, 
yet was he inferior to none that ever 
lived in frankness, honour, and magna- 
nimity.* 



virtues, which possibly were rather exaggerated by 
earlier writers. 

* Since this passage was written, I have found 
a parallel drawn by Mr. Sharon Turner, in his val- 
uable History of England, between Achilles and 
Richard Coeur de Lion ; the superior justness of 
which I readily acknowledge. The real hero does 
not indeed excite so much interest in me as the 
poetical ; but the marks of resemblance are very 
striking, whether we consider their passions, their 
talents, their virtues, their vices, or the waste of 
their heroism. 

The two principal persons in the Iliad, if I may 
digress into the observation, appear to me repre 
sentatives of the heroic character in its two lead- 
ing varieties ; of the energy which has its sole 
principle of action within itself, and of that which 
borrows its impulse from external relations ; of the 
spirit of honour, in short, and of patriotism. As 
every sentiment of Achilles is independent and 
self-supported, so those of Hector all bear refer- 
ence to his kindred and his country. The ardour 
of the one might have been extinguished for want 
of nourishment in Thessaly ; but that of the other 
might, we fancy, have never been kindled but for 
the dangers of Troy. Peace could have brought 
no delight to the one but from the memory of war ; 
war had no alleviation to the other but from the 
images of peace. Compare, for example, the two 
speeches, beginning II. Z., 441, and II. II., 49 ; or 
rather compare the two characters throughout the 
Iliad. So wonderfully were those two great springs 
of human sympathy, variously interesting accord- 



Part II. J 



STATE OF SOCIETY. 



6ii 



In the first state of chivalry, it was 
Its connex- closely connected with the mil- 
ion with itary service of fiefs. The Ca- 
(eudai ser- ballarii in the Capitularies, the 
Milites of the eleventh and 
twelfth centuries, were landholders who 
followed their lord or sovereign into the 
field. A certain value of land was term- 
ed in England a knight's fee, or, in Nor- 
mandy, feudum loricae, fief de haubert, 
from the coat of mail which it entitled 
and required the tenant to wear; a mil- 
itary tenure was said to be by service in 
chivalry. To serve as knights, mounted 
and equipped, was the common duty of 
vassals ; it implied no personal merit, it 
gave of itself a claim to no civil privi- 
leges. But this knight-service, founded 
upon a feudal obligation, is to be careful- 
ly distinguished from that superior chiv- 
alry, in which all was independent and 
voluntary. The latter, in fact, could 
hardly flourish in its full perfection till 
This con- the military service of feudal ten- 
nexion yire began to decline ; nM||ly, in 
'° ™' the thirteenth century, w^e or- 
igin of this personal chivalry I should 
incline to refer to the ancient usage of 
voluntary commendation, which I have 
mentioned in a former chapter. Men 
commended themselves, that is, did 
homage and professed attachment to a 
prince or lord ; generally indeed for pro- 
tection or the hope of reward, but some- 
times probably for the sake of distin- 
guishing themselves in his quarrels. 
When they received pay, which must 
liave been the usual case, they were lit- 
erally his soldiers or stipendiary troops. 
Those who could afford to exert their 
valour without recompense were like the 
knights of Avhom we read in romance, 
who served a foreign master through 
love, or thirst of glory, or gratitude. 
The extreme poverty of the lower nobil- 
ty, arising from the subdivision of fiefs, 
and the politic generosity of^ rich lords, 
made this connexion as strong as that 
of territorial dependance. A younger 
brother, leaving the paternal estate, in 
which he took a slender share, might 
look to wealth and dignity in the service 
of a powerful count. Knighthood, which 
he could not claim as his legal right, be- 
came the object of his chief ambition. 
It raised him in the scale of society, 
equalling him in dress, in arms, and in 
title, to the rich landholders. As it was 
due to his merit, it did much more than 



ing to the diversity of our tempers, first touched 
by that ancient patriarch, 

a quo, ceu lonte perenni, 
Vatum Pieriis ora rigantur aquis. 



equal him to those who had no preten- 
sions but from wealth ; and the territo- 
rial knights became by degrees ashamed 
of assuming the title till they could chal- 
lenge it by real desert. 

This class of noble and gallant cava- 
Hers, serving commonly for Effect of the 
pay, but on the most honoura- crusades on 
ble footing, became far more '^^'^'''''y 
numerous through the crusades ; a great 
epoch in the history of European socie- 
ty. In these wars, as all feudal service 
was out of the question, it was necessa- 
ry for the richer barons to take into their 
pay as many knights as they could aff'ord 
to maintain : speculating, so far as such 
motives operated, on an influence with 
the leaders of the expedition, and on a 
share •f plunder proportioned to the 
number of their followers. During the 
period of the crusades, we find the insti- 
tution of chivalry acquire its full vigour 
as an order of personal nobility ; and 
its original connexion with fetidal ten- 
ure, if not altogether eff'aced, became 
in a great measure forgotten in the 
splendour and dignity of the new form 
which it wore. 

The crusaders, however, changed in 
more than one respect the char- 
acter of chivalry. Before that connmed 
epoch it appears to have had no with reii- 
particular reference to rehgion. ^"'"' 
Ingulfus indeed tells us that the Anglo- 
Saxons preceded the ceremony of inves- 
titure by a confession of their sins, and 
other pious rites, and they received the 
order at the hands of a priest instead of 
a knight. But this was derided by the 
Normans as effeminacy, and seems to 
have proceeded from the extreme devo- 
tion of the English before the conquest.* 
We can hardly perceive, indeed, why the 
assumption of arms to be used in butch- 
ering mankind should be treated as a 
religious ceremony. The clergy, to do 
them justice, constantly opposed the 
private wars in which the courage of 
those ages wasted itself; and all blood- 
shed was subject in strictness to a ca- 
nonical penance. But the purposes for 
which men bore arms in a crusade so 
sanctified their use, that chivalry acquired 
the character as much of a«religious as a 
military institution. For many centu- 
ries, the recovery of the Holy Land was 
constantly at the heart of a brave and" 
superstitious nobility ; and every knight 

* Ingulfus in Gale, xv. Scriptores, t. i., p. 70. 
William Rufus, however, was knighted by Arch- 
bishop Lanfranc, which looks as if the ceremony 
was not absolutely repugnant to the Norman prac- 
tice. 



512 



EUROPE DURING THE MIDDLE AGES. 



Chap. IX 



was supposed at his creation to pledge 
himself, as occasion should arise, to that 
cause. Meanwhile, the defence of God's 
law against infidels was his primary and 
standing duty. A knight, whenever pres- 
ent at mass, held the point of his sword 
before him while the gospel was read, 
to signify his readiness to support it. 
Writers of the middle ages compare the 
knightly to the priestly character in an 
elaborate parallel, and the investiture of 
the one was supposed analogous to the 
ordination of the other. The ceremonies 
upon this occasion were almost wholly 
religious. The candidate passed nights 
in prayer among priests in a church ; he 
received the sacraments ; he entered into 
a bath, and was clad with a white robe, 
in allusion to the presumed purtfication 
of his life ; his sword was solemnly 
blessed ; every thing, in short, was con- 
trived to identify his new condition with 
the defence of rehgion, or at least of the 
church.* 

To this strong tincture of religion, 
And with which entered into the composi- 
gaiiatitry. tiou of chivalry from the twelfth 
century, was added another ingredient 
equally distinguishing. A great respect 
for the female sex had always been a re- 
markable characteristic of the Northern 
nations. The German women were high 
spirited and virtuous ; qualities which 
might be causes or consequences of 
the veneration with which they were 
regarded. I am not sure that we could 
trace very minutely the condition of 
women for the period between the sub- 
version of the Roman empire and the 
first crusade ; but apparently man did not 
grossly abuse his superiority; and in 
point of civil rights, and even as to the 
inheritance of property, the two sexes 
were placed perhaps as nearly on a level 
as the nature of such warlike societies 
would admit. There seems, however, to 
have been more roughness in the social 
intercourse between the sexes than we 
find in later periods. The spirit of gal- 
lantry, which became so animating a 
principle of chivalry, must be ascribed to 
the progressive refinement of society du- 
ring the twelfth and two succeeding cen- 
turies. In a rude state of manners, as 
among the lower people in all ages, 
woman has not full scope to display 

♦ Du Cange, v. Miles, and 22d Dissertation on 
Joinville. St. Palaye, M6m sur la Chevalerie, part 
ii. A curious original illustration of this, as well 
as of other chivalrous principles, will be found in 
rOrdene de Chevalerie, a long metrical romance 
published in Barbazan's Fabliaux, t. i., p. 59 (edit. 
1808). 



those fascinating graces, by which na- 
ture has designed to counterbalance the 
strength and energy of mankind. Even 
where those jealous customs that degrade 
alike the two sexes have not prevailed, 
her lot is domestic seclusion ; nor is she 
fit to share in the boisterous pastimes of 
drunken merriment, to which the inter 
course of an unpolished people is confi- 
ned. But as a taste for the more elegant 
enjoyments of wealth arises, a taste 
which it is always her policy and her de- 
light to nourish, she obtains an ascend- 
ency at first in the lighter hour, and from 
thence in the serious occupations of life. 
She chases or brings into subjection the 
god of wine, a victory which might seem 
more ignoble were it less difficult, and 
calls in the aid of divinities more propi- 
tious to her ambition. The love of be- 
coming ornament is not perhaps to be re- 
garded in the light of vanity; it is rather 
an instinct which woman has received 
from nature to give effect to those charms 
that ji^ her defence ; and when com 
mer(^regan to minister more efiectually 
to the wants of Inxurj', the rich furs of 
the North, the gay silks of Asia, the 
wrought gold of domestic manufacture, 
illumined the halls of chivalry, and cast, 
as if by the spell of enchantment, that 
ineffable grace over beauty which the 
choice and arrangement of dress are cal- 
culated to bestow. Courtesy had always 
been the proper attribute of kniglithood 
protection of the weak its legitimate duty 
but these were heightened to a pilch ot 
enthusiasm when woman became theii 
object. There was little jealousy shown 
in the treatment of that sex, at least ir 
France, the fountain of chivalry; they 
were present at festivals, at tournaments 
and sat promiscuously in the halls of their 
castle. The romance of Perceforest (and 
romances have always been deemed good 
witnesses as to manners) tells of a feast 
where eight hundred knights had each of 
them a lady eating off his plate.* For to 
eat off the same plate was a usual mark 
of gallantry or friendship. 

Next therefore, or even equal to devo- 
tion, stood gallantry among the princi- 
ples of knighthood. But all comparison 
between the two was saved by blending 
them together. The love of God and 
the ladies was enjoined as a single duty. 
He who was faithful and true to his mis- 



* Y eut huit cens chevaliers s6ant a table ; et si 
n'y eust celui qui n'eust une dame ou une pucelle 
a son ecuclle. In Lancelot du Lac, a lady who 
was troubled with a jealous husband complains 
that it was a long time since a knight had eaten off 
her plate. — Le Grand, t. i., p. 24. 



Part 11.] 



STATE OF SOCIETY. 



613 



tress was held sure of salvation in the 
theology of castles, though not of clois- 
ters.* Froissart announces that he had 
undertaken a collection of amorous poe- 
try with the help of God and of love ; 
and Boccace returns thanks to each for 
their assistance in the Decameron. The 
laws sometimes united in this general 
homage to . the fair. We will, says 
James II. of Aragon, that every man, 
whether knight or no, who shall be in 
company with a lady, pass safe and un- 
molested, unless he he guilty of murder.f 
Louis II., duke of Bourbon, instituting the 
order of the Golden Shield, enjoins his 
knights to honour above all the ladies, 
and not to permit any one to slander 
them, "because from them, after God, 
comes all the honour that men can ac- 
quir.p."| 

The gallantry of hose ages, which 
was very often adulterous, had certainly 
no right to profane the name of religion ; 
but its union with valour was at least 
more natural, and became so jajHuate, 
that the same word has served t(^tpress 
both qualities. In the French aM^ Eng- 
lish wars especially, the knights of each 
country brought to that serious conflict 
the spirit of romantic attachment which 
had been cherished in the hours of peace. 
They fought at Poitiers or Verneuil as 
they had fought at tournaments, bearing 
over their armour scarves and devices, 
as the livery of their mistresses, and as- 
serting the paramount beauty of her they 
served, in vaunting challenges towards 
the enemy. Thus, in the middle of a 
keen skirmish at Cherbourg, the squad- 
rons remained motionless, while one 
knight challenged to a single combat the 
most amorous of the adversaries. Such 
a defiance was soon accepted ; and the 
battle only recommenced when one of 
the champions had lost his life for his 
love.^ In the first campaign of Edward's 
war, some yomig English knights wore a 
covering over one eye, vowing, for the 
sake of their ladies, never to see with 
both till they should have signalized 
their prowess in the field.f( These ex- 
travagances of chivalry are so common 
that they form part of its general charac- 
ter, and prove how far a course of action 

* Le Grand, Fabliaux, t. iii., p. 438. St. Palaye, 
t. i., p. 41. I quote St. Palaye's Memoirs from the 
first edition in 1759, which is not the best. 

t Statuimus, quod omnus homo, sive miles sive 
alius, qui iverit cum domina generosa, salvus sit 
atque securus, nisi fuerit homicida. — De Marca, 
Marca Hispanica, p. 1428. 

t Le Grand, t. i., p. 120. St. Palaye, t. i., p. 13, 
134, 221. Fabliaux, Romances, &c., passim. 

6 St. Palaye, p. 222. |1 Froissart. p. 33. 

Kk 



which depends upon the impulses of sen 
timent may come to deviate from com- 
mon sense. 

It cannot be presumed that this enthu- 
siastic veneration, this devotedness in 
life and death, were wasted upon ungrate- 
ful natures. The goddesses of that idol- 
atry knew too well the value of their 
worshippers. There has seldom been 
such adamant about the female heart as 
can resist the highest renown for valour 
and courtesy, united with the steadiest 
fidelity. " He loved (says Froissart of 
Eustace d'Auberthicourt), and afterward 
married Lady Isabel, daughter of the 
Count of Juliers. This lady, too, loved 
Lord Eustace for the great exploits in 
arms which she heard told of him, and 
she sent him horses and loving letters, 
which made the said Lord Eustace more 
bold than before, and he wrought such 
feats of chivalry that all in his company 
were gainers."* It were to be wished 
that the sympathy of love and valour had 
always been as honourable. But the 
morals of chivalry, we cannot deny, were 
not pure. In the amusing fictions which 
seem to have been the only popular read- 
ing of the middle ages, there reigns a li- 
centious spirit, not of that slighter kind 
which is usual in such compositions, but 
indicating a general dissoluteness in the 
intercourse of the sexes. This has often 
been noticed of Boccaccio and the early 
Italian novelists ; but it equally charac- 
terized the tales and romances of France, 
whether metrical or in prose, and all the 
poetry of the Troubadours. f The viola- 
tion of marriage-vows passes in them for 
an incontestable privilege of the brave 
and the fair ; and an accomplished knight 
seems to have enjoyed as undoubted pre- 
rogatives, by general consent of opinion, 
as were claimed by the brilliant courtiers 
of Louis XV. 

But neither that einulous valour which 
chivalry excited, nor the religion and 
gallantry Avhich were its animating prin- 
ciples, alloyed as the latter were by the 
corruption of those ages, could have ren- 
dered its institution materially conducive 
to the moral improvement of society. 
There were, however, excellences of a 
very high class which it equally encour- 
aged. In the books professedly written 
to lay down the duties of knighthood, they 
appear to spread over the Avhole compass 

* St. Palaye, p. 268. 

t The romances will speak for themselves ; and 
the character of the Proven(;al morality may be 
collected from Millot, Hist, des Troubadours, pas- 
sim ; and from Sismondi, Litt^rature du Midi, t. i., 
p. 179, &,c. See too St. Palave, t. ii., p. 62 and 68. 



514 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



of human obligations. But these, like 
other books of morality, strain their 
schemes of perfection far beyond the 
actual practice of mankind. A juster es- 
timate of chivalrous manners is to be de- 
duced from romances. Yet in these, as 
in all similar fictions, there must be a few 
ideal touches beyond the simple truth of 
character; and the picture can only be 
interesting when it ceases to present im- 
ages of mediocrity or striking imperfec- 
tion. But they referred their models of 
fictitious heroism to the existing standard 
of moral approbation ; a rule which, if 
it generally falls short of what reason 
and religion prescribe, is alwaj^s beyond 
the average tenour of human conduct. 
From these and from history itself we 
may infer the tendency of chivalry to el- 
evate and purify the moral feelings. 
Three virtues may particularly be no- 
^,. ticed, as essential, in the estima- 

Virtu 6S 

deemed es- tion of mankind, to the charac- 
seniiai to ter of a knight ; loyalty, courte- 
ciuvairy. ^^.^ ^^^^ munificence. 

The first of these, in its original sense, 
J . ,.. may be defined, fidelity to engage- 
°^^ ^' ments ; whether actual promises, 
or such tacit obligations as bound a vas- 
sal to his lord, and a subject to his prince. 
It was applied also, and in the utmost 
strictness, to the fidelity of a lover to- 
wards the lady he served. Breach of 
faith, and especially of an express prom- 
ise, was held a disgrace that no valour 
could redeem. False, perjured, disloyal, 
recreant, were the epithets which he 
must be compelled to endure who had 
swerved from a plighted engagement, 
even towards an enemy. This is one of 
the most striking changes produced by 
chivalry. Treachery, the usual vice of 
savage as well as corrupt nations, be- 
came infamous during the vigour of that 
discipline. As personal rather than na- 
tional feelings actuated its heroes, they 
never felt that hatred, much less that 
fear of their enemies, which blind men 
to the heinousness of ill faith. In the 
wars of Edward III., originating in no 
real animosity, the spirit of honourable 
as well as courteous behaviour towards 
the foe seems to have arrived at its high- 
est point. Though avarice may have 
been the primary motive of ransoming 
prisoners, instead of putting them to 
death, their permission to return home 
on the word of honour, in order to pro- 
cure the stipulated sum, an indulgence 
never refused, could only be founded on 
experienced confidence in the principles 
of chivalry.* 

* St. Palaye, part ii. 



A knight was unfit to remain a membe 
of the order if he violated his 
faith ; he Avas ill acquainted with <^°"''"'^V 
its duties if he proved wanting in cour 
tesy. This word expressed the mosf 
highly refined good-breeding, founde(? 
less upon a knowledge of ceremonious 
politeness, though this was not to be 
omitted, than on the spontaneous mod- 
esty, self-denial, and respect for others, 
which ought to spring from his heart. 
Besides the grace which this beautiful 
virtue threw over the habits of social 
life, it softened down the natural rough- 
ness of war, and gradually introduced 
that indulgent treatment of prisoners 
which was almost unknown to antiquity. 
Instances of this kind are continual in the 
later period of the middle ages. An Ital- 
ian writer blames the soldier who wound- 
ed Eccelin, the famous tyrant of Padua, 
after he was taken. He deserved, says 
he, no praise, but rather the greatest in- 
famy for his baseness ; since it is as vile 
an ac^to wound a prisoner, whether no- 
ble dl^Btherwise, as to strike a dead 
body.^^Consideringthe crimes of Ecce- 
lin, this sentiment is a remarkable proof 
of generosity. The behaviour of Ed- 
ward III. to Eustace de Ribaumont, after 
the capture of Calais, and that, still more 
exquisitely beautiful, of the Black Prince 
to his royal prisoner at Poitiers, are such 
eminent instances of chivalrous virtue, 
that I omit to repeat them only because 
they are so well known. Those great 
princes, too, might be imagined to have 
soared far above the ordinary track of 
mankind. But, in truth, the knights who 
surrounded them and imitated their ex- 
cellences were only inferior in opportu- 
nities of displaying the same virtue. 
After the battle of Poitiers, " the English 
and Gascon knights," says Froissart, 
" having entertained their prisoners, went 
home each of them with the knights or 
squires he had taken, whom he then ques- 
tioned upon their honour, what ransom 
they could pay without inconvenience, 
and easily gave them credit; and it was 
common for men to say that they would 
not straighten any knight or squire, so 
that he should not live well and keep up 
his honour. "t Liberality indeed, and 

* Non laucletn meruit, sed summae potius oppro 
brium vilitatis ; nam idem facinus est putandurr. 
captum nobilem vel ignobilem offendere, vel ferire, 
quam gladio caedere cadaver. — Rolandinus in 
Script. Rer. Ital, t. viii., p. 351. 

t Froissart, 1. i., c. 161. He remarks in another 
place, that all English and French gentlrnien 
treat their prisoners well ; not so the Germans, who 
put them in fetters, in order to extort more money, 
c. 13G. 



Part II.] 



STATE OF SOCIETY. 



515 



Lberaiit "disdain of money, might be reck- 
' ""^^ ' ^' oned, as I have said, among the 
essential virtues of chivalry. All the ro- 
mances inculcate the duty of scattering 
their weahh with profusion, especially 
tow^ards minstrels, pilgrims, and the poor- 
er members of their own order. The 
last, who were pretty numerous, had a 
constant right to succour from the opu- 
lent ; the castle of every lord, who re- 
spected the ties of knighthood, was open 
with more than usual hospitality to the 
traveller whose armour announced his 
dignity, though it might also conceal his 
poverty.* 

Valour, loyalty, courtesy, munificence, 
formed collectively the character 
Justice. ^^ ^^ accomplished knight, so far 
as was displayed in the ordinary tenour 
of his life, reflecting these virtues as an 
unsullied mirror. Yet something more 
was required for the perfect idea of chiv- 
alry, and enjoined by its principles; an 
active sense of justice, an ardent indig- 
nation against wrong, a determination of 
courage to its best end, the prevention or 
redress of injury. It grew up as a salu- 
tary antidote in the midst of poisons, 
while scarce any law but that of the 
strongest obtained regard, and the rights 
of territorial property, which are only 
right as they conduce to general good, 
became the means of general oppression. 
The real condition of society, it has 
sometimes been thought, might suggest 
stories of knight-errantry, which were 
wrought up into the popular romances 
of the middle ages, A baron, abusing 
the advantage of an inaccessible castle 
in the fastnesses of the Black Forest or 
the Alps, to pillage the neighbourhood, 
and confine travellers in his dungeon, 
though neither a giant nor a Saracen, 
was a monster not less formidable, and 
could perhaps as little be destroyed 
without the aid of disinterested bravery. 
Knight-errantry, indeed, as a profession, 
cannot rationally be conceived to have 
had any existence beyond the precincts 
of romance. Yet there seems no im- 
probability in supposing that a knight, 
journeying through uncivilized regions 
in his way to the Holy Land or to the 
court of a foreign sovereign, might find 
himself engaged in adventures not very 



* St. Palaye, part iv., p. 312, 367, &c. Le 
Grand, Fabliaux, t. i., p. 11.5, 167. It was the cus- 
tom in Great Britain (says the romance of Perce- 
forest, speaking of course in an imaginary history), 
that noblemen and ladies placed a helmet on the 
highest pomt of their castles, as a sign that all per- 
sons of such rank travelling that road might boldly 
enter their houses like their own. — St. Palaye, 
p. 367. 

Kk2 



dissimilar to those which are the theme 
of romance. We cannot indeed expect 
to find any historical evidence of such 
incidents. 

The characteristic virtues of chivalry 
bear so much resemblance to Resem- 
those which eastern writers of fiance of 

,, . , . 1 ,, ^ T chivalrouu 

the same period extol, that 1 am to eastern 

a little disposed to suspect Eu- manners. 

rope of having derived some improve- 
ment from imitation of Asia. Though 
the crusades began in abhorrence of in- 
fidels, this sentiment wore off in some 
degree before their cessation ; and the 
regular intercourse of commerce, some- 
times of alliance, between the Christians 
of Palestine and the Saracens, must have 
removed part of the prejudice, while ex- 
perience of their enemy's courage and 
generosity in war would with those 
gallant knights serve to lighten the re- 
mainder. The romancers expatiate with 
pleasure on the merits of Saladin, who 
actually received the honour of knight- 
hood from Hugh of Tabaria his prisoner. 
An ancient poem, entitled the Order of 
Chivalry, is founded upon this story, and 
contains a circumstantial account of the 
ceremonies, as well as duties, which the 
institution required.* One or two other 
instances of a similar kind bear witness 
to the veneration in which the name of 
knight was held among the eastern na- 
tions. And certainly, excepting that ro- 
mantic gallantry towards women, which 
their customs would not admit, the Ma- 
hometan chieftains were for the most part 
abundantly qualified to fulfil the duties 
of European chivalry. Their manners 
had been polished and courteous, while 
the western kingdoms were compara- 
tively barbarous. 

The principles of chivalry were not, I 
think, naturally productive of evUs produced 
many evils. For it is unjust by the spirit of 
to class those acts of oppres- <^hivairy. 
sion or disorder among the abuses of 
knighthood, which were committed in 
spite of its regulations, and were only 
prevented by them from becoming more 
extensive. The license of times so im- 
perfectly civilized could not be expected 
to yield to institutions which, like those 
of religion, fell prodigiously short in their 
practical result of the reformation which 
they were designed to work. Man's 
guilt and frailty have never admitted 
more than a partial corrective. But some 
bad consequences may be more fairly 
ascribed to the very nature of chivalry. 
I have already mentioned the dissolute- 



* Fabliaux de Barbasan, t. 



516 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



ness which almost unavoidably resulted 
from the prevailing tone of gallantry. 
And yet we sometimes find, in the wri- 
tings of those times, a spirit of pure but 
exaggerated sentiment ; and the most 
fanciful refinements of passion are min- 
gled by the same poets with the coarsest 
immorality. An undue thirst for mili- 
tary renown was another fault that chiv- 
alry must have nourished ; and the love 
of war, sufficiently pernicious in any 
shape, was more founded, as I have ob- 
served, on personal feelings of honour, 
and less on public spirit, than in the citi- 
zens of free states. A third reproach 
may be made to the character of knight- 
hood, that it widened the separation be- 
tween the different classes of society, 
and confirmed that aristocratical spirit 
of high birth, by which the large mass of 
mankind were kept in unjust degradation. 
Compare the generosity of Edward III. 
towards Eustace de Ribaumont at the 
siege of Calais, with the harshness of 
his conduct towards the citizens. This 
may be illustrated by a story from Join- 
ville, who was himself imbued with the 
full spirit of chivalry, and felt like the 
best and bravest of his age. He is 
speaking of Henry, count of Champagne, 
who acquired, says he, very deservedly, 
the surname of Liberal, and adduces the 
following proof of it. A poor knight im- 
plored of him on his knees one day as 
much money as would serve to marry his 
two daughters. One Arthault de Nogent, 
a rich burgess, willing to rid the count of 
this importunity, but rather awkward, we 
must own, in the turn of his argument, 
said to the petitioner, My lord has al- 
ready given away so much that he has 
nothing left. Sir Villain, rephed Henry, 
turning round to him, you do not speak 
truth in saying that I have nothing left 
to give when I have got yourself. Here, 
Sir Knight, I give you this man, and war- 
rant your possession of him. Then, says 
Joinville, the poor knight was not at all 
confounded, but seized hold of the bur- 
gess fast by tlie collar, and told him he 
should not go till he had ransomed him- 
self. And in the end he was forced to 
pay a ransom of five hundred pounds. 
The simple-minded writer who brings 
this evidence of the Count of Cham- 
pagne's liberality is not at all struck 
with the facility of a virtue that is exer- 
cised at the cost of others.* 

There is perhaps enough in the nature 
Circumstan- ^^ ''^^'^ institution, and its con- 
cestendin? geniahty to the habits of a 
to promote it. vvarlike generation, to account 



* Joinville in Collection des Memoires, t. i., p. 43. 



for the respect in which it was held 
throughout Europe. But several collat- 
eral circumstances served to invigorate 
its spirit. Besides the poweiful efficacy 
with which the poetry and romance of 
the middle ages stimulated those sus- 
ceptible minds wliich were alive to no 
other literature, we may enumerate four 
distinct causes tending to the promotion 
of chivalry. 

The first of these was the regular 
scheme of education, according Re-^uiar ed- 
to which the sons of gentlemen, ucation for 
from the age of seven years, •^n's'^'^oo'i- 
were brought up in the castles of supe- 
rior lords, where they at once learned the 
whole discipline of their future profes- 
sion, and imbibed its emulous and enthu- 
siastic spirit. This was an inestimable ad- 
vantage to the poorer nobility, who could 
hardly otherwise have given their chil- 
dren the accomplishments of their sta- 
tion. From seven to fourteen these 
boys were called pages or varlets ; at 
fourteen they bore the name of esquire. 
They were instructed in the manage- 
ment of arms, in the art of horsemanship, 
in exercises of strength and activity. 
They became accustomed to obedience 
and courteous demeanour, serving their 
lord or lady in ofiices which had not yet 
become derogatory to honourable birth, 
and striving to please visiters, and espe- 
cially ladies, at the ball or banquet. 
Thus placed in the centre of all that 
could awaken their imaginations, the 
creed of chivalrous gallantry, supersti- 
tion, or honour, must have made indeli- 
ble impressions.. Panting for the glory 
which neither their strength nor the es- 
tablished rules permitted them to antici- 
pate, the young scions of chivalry attend- 
ed their masters to the tournament, and 
even to the battle, and riveted with a 
sigh the armour they were forbidden to 
wear.* 

It was the constant policy of sover- 
eigns to encourage this institu- Encourage- 
tion, which furnished them with ""'"' °'^ 
faithful supports, and counter- xounia"- 
acted the independent spirit of ments. 
feudal tenure. Hence they displayed v 
lavish magnificence in festivals and tour 
naments, which may be reckoned a sec- 
ond means of keeping up the tone of 
chivalrous feeling. The kings of France 
and England held solemn or plenary 
courts at the great festivals, or at other 
times, where the name of knight was 
always a title to admittance ; and the 
masque of chivalry, if I may use the f;x- 
pression, was acted in pageants and cer- 



* St. Palaye, part i. 



Fart II.] 



STATE OF SOCIETY. 



517 



emonies, fantastical enough in our ap- 
prehension, but well calculated for those 
heated understandings. Here the pea- 
cock and the pheasant, birds of high 
fame in romance, received the homage 
of all true knights.* The most singular 
festival of this kind was that celebrated 
by Philip, duke of Burgundy, in 1453. 
In the midst of the banquet a pageant 
was introduced, representing the calami- 
tous state of religion in consequence of 
the recent capture of Constantinople. 
This was followed by the appearance of 
a pheasant, which was laid before the 
duke, and to which the knights present 
addressed their vows to undertake a cru- 
sade, in the following very characteristic 
preamble : I swear before God my crea- 
tor in the first place, and the glorious 
Virgin his mother, and next before the 
ladies and the pheasant. f Tournaments 
were a still more powerful incentive to 
emulation. These may be considered 
to have arisen about the middle of the 
eleventh century ; for though every mar- 
tial people have found diversion in repre- 
senting the image of war, yet the name 
of tournaments, and the laws that regu- 
lated them, cannot be traced any higher.J 
Every scenic performance of modern 
times must be tame in comparison of 
these animating combats. At a tourna- 
ment, the space enclosed within the lists 
was surrounded by sovereign princes and 
their noblest barons, by knights of estab- 
lished renown, and all that rank and 
beauty had most distinguished among 
the fair. Covered with steel, and known 
only by their emblazoned shield, or by 
the favours of their mistresses, a still 
prouder bearing, the combatants rushed 
forward to a strife without enmity, but 
not without danger. Though their weap- 
ons were pointless, and sometimes only 
of wood, though they were bound by 
the laws of tournaments to strike only 
upon the strong armour of the trunk, or, 
as it was called, between the four limbs, 
those impetuous conflicts often termina- 
ted in wounds and death. The church 
uttered her excommunications in vain 
against so wanton an exposure to peril ; 
but it w-as more easy for her to excite 
than to restrain that martial enthusiasm. 



* Du Cange, 5™« Dissertation sur Joiuville. St. 
Palaye, t. i.. p. 87, 118. Le Grand, t. i., p. 14. 

t St. Palaye, t. i., p. 191. 

% Godfrey de PreuiUy, a French knight, is said 
by several contemporary writers to have invented 
tourn.iments ; which must of course be understood 
in a limited sense. The Germans ascribe them to 
Henry the Fowler; but this, accordmg to Du 
Cange, is on no authority. — 6™* Dissertation sur 
ioinville. 



Victory in a tournament was little less 
glorious, and perhaps at the moment 
more exquisitely felt, than in the field; 
since no battle could assemble such wit- 
nesses of valour. " Honour to the sons 
of the brave" resounded amid the din of 
martial music from the lips of the min- 
strels, as the conqueror advanced to re- 
ceive the prize from his queen or his 
mistress ; while the surrounding multi- 
tude acknowledged in his prowess of that 
day an augury of triumphs that might in 
more serious contests be blended with 
those of his country.* 

Both honorary and substantial privi- 
leges belonged to the condition privileges 
of knighthood, and had of course of knight- 
a material tendency to preserve ^°°^' 
its credit. A knight was distinguished 
abroad by his crested helmet, his weighty 
armour whether of mail or plate, bear- 
ing his heraldic coat, by his gilded spurs, 
his horse barded with iron or clothed in 
housing of gold ; at home by richer silks 
and more costly furs than were permit- 
ted to squires, and by the appropriated 
colour of scarlet. He was addressed by 
titles of more respect. f Many civil of- 
fices, by rule of usage, were confined to 
his order. But perhaps its chief privi- 
lege was to form one distinct class of 
nobility, extending itself throughout great 
part of Europe, and almost independent, 
as to its rights and dignities, of any par- 
ticular sovereign. Whoever had been 
legitimately dubbed a knight in one 
country, became, as it were, a citizen of 
universal chivalry, and might assume 
most of its privileges in any other. Nor 
did he require the act of a sovereign to 
be thus distinguished. It was a funda- 
mental principle that any knight might 
confer the order ; responsible only in his 
own reputation if he used lightly so high 
a prerogative. But as all the distinctions 
of rank might have been confounded if 
this right had been without limit, it was 
an equally fundamental rule, that it 
could only be exercised in favour of 
gentlemen. J 

* St. Palaye, part ii. and part iii. au commence- 
ment. Du Cange, Dissert. 6 and 7 : and Glossa- 
ry, V. Torneamentum. Le Grand, Fabliaux, t. i., 
p. 184. 

f St. Palaye, part iv. Selden's Titles of Hon- 
our, p. 806. There was not, however, so much 
distinction in England as in France. 

t St. Palaye, vol. i., p. 70, has forgotten to make 
this distinction. It is, however, capable of abun- 
dant proof. Gunther, in his poem called Ligurin 
us, observes of the Milanese republic: 

Quoslibet ex hiimili vulgo, quod Gallia foedum 

Judicat, accingi gladio concedit cquestri. 
Otho of Frisingen expresses the same in prose. It 
is said, in the Establishments of St. Louie, that if 



518 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



The privileges annexed to chivalry 
were of peculiar advantage to the vavas- 
sors, or inferior gentry, as they tended 
to counterbalance the influence which 
territorial wealth threw into the scale 
of their feudal suzerains. Knighthood 
brought these two classes nearly to a 
level ; and it is owing perhaps in no small 
degree to this institution, that the lower 
nobility saved themselves, notwithstand- 
ing their poverty, from being confounded 
with the common people. 

Lastly, the customs of chivalry were 
maintained by their connexion with mil- 

any one not being a gentleman on the father's side 
was knighted, the king or baron in whose territory 
he resides may hack off his spurs on a dunghill, 
c. 130. The Count de Nevers, having knighted a 
person who was not noble ex parte paterna, was 
fined in the king's court. The king, however 
(Philip III.), confirmed the knighthood. — Daniel, 
Hist, de la Milice Franejoise, p. 98. Fuit proposi- 
tum (says a passage quoted by Daniel) contra corn- 
item Flandriensem, quod non poterat, nee debebat 
facere de villano militem, sine auctoritate regis, 
ibid. Statuimus, says James I. of Aragon, in 1234, 
ut nuUus facial militem nisi filium militis. — Marca 
Hispanica, p. 1428. Selden, Titles of Honour, p. 
592, produces other evidence to the same effect. 
And the Emperor Sigismund, having conferred 
knighthood, durmg his stay at Paris in 1415, on a 
person incompetent to receive it for want of nobili- 
ty, the French were indignant at his conduct, as an 
assumption of sovereignty. — ViUaret, t. xiii., p. 
397. We are told, however, by Giannone, 1. xx., 
0. 3, that nobility was not in fact required for re- 
ceiving chivalry at Naples, though it was in 
France. 

The privilege of every knight to associate 
qualified persons to the order at his pleasure, last- 
ed very long in France ; certainly down to the 
English wars of Charles VII. (Monstrelet, part 
ii., folio 50), and, if I am not mistaken, down to the 
time of Francis I. But in England, where the 
spirit of independence did not prevail so much 
among the nobility, it soon ceased. Seklen men- 
tions one remarkable instance in a writ of the 29th 
year of Henry III, summoning tenants in capite to 
come and receive knighthood from the king, ad re- 
cipiendum a nobis arma militaria ; and tenants of 
mesne lords to be knighted by whomsoever they 
pleased, ad recipiendum arma de quibuscunque 
voluerint.— Titles of Honour, p. 792. But soon 
after this time it became an established principle 
of our law, that no subject can confer knighthood 
except by the king's authority. Thus Edward 
III. grants to a burgess of Lyndia in Guienne (1 
know not what place this is) the privilege of re- 
ceiving that rank at the hands of any knight, his 
want of noble birth notwithstanding.— Rymer, t. 
v., p. G23. It seems, however, that ar diilerent law 
obtained in some places. Twenty-three of the 
chief inhabitants of Beaucaire, partly knights, 
partly burgesses, certified, in 1298, that the im- 
memorial usage of Beaucaire and of Provence had 
been, for burgesses to receive knighthood at the 
hands of noblemen, without the prince's permis- 
sion. — Vaissette, Hist, de Languedoc, t. hi , p. 530. 
Burgesses in the great commercial towns were 
considered as of a superior class to the roturiers, 
and possessed a kind of demi-nobility. Charles 
V. appears to have conceded a similar indulgence 
to tlie citizens of Paris. — ViUaret, t. x., p. 248. 



itary service. After armies connexion 
which we may call compara- wiiii miu- 
tively regular, had superseded ^^^y,^^",'''^- 
in a great degree the feudal mi- "^ "^'' ^^ 
litia, princes were anxious to bid high for 
the service of knights, the best equipped 
and bravest warriors of the time, on 
whose prowess the fate of battles was 
for a long period justly supposed to de- 
pend. "War brought into relief the gen- 
erous virtues of chivalry, and gave lustre 
to its distinctive privileges. The rank 
was sought with enthusiastic emulation, 
through heroic achievements, to which, 
rather than to mere wealth and station, 
it was considered to belong. In the 
wars of France and England, by far the 
most splendid period of this institution, a 
promotion of knights followed every suc- 
cess, besides the innumerable cases 
where the same honour rewarded indi- 
vidual bravery.* It may here be men- 
tioned, that an honorary distinction was 
made between knights-bannerets and 
bachelors.! The former were the rich- 
est and West accompanied. No Knights- 
man could properly be a ban- bannerets 
neret unless he possessed a fo^'''*'^''^ 
certain estate, and could bring 
a certain number of lances into the field. J 
His distinguishing mark was the square 
banner, carried by a squire at the point 
of his lance ; while the knight bachelor 
had only the coronet or pointed pendant. 
When a banneret was created, the gen- 
eral cut oft" this pendant to render it 
square. § But this distinction, however it 



* St. Palaye, partiii., passim. 

•f The word bachelor has been commonly de- 
rived from has chevalier, in opposition to banneret. 
But this, however plausible, is unlikely to be right. 
We do not find any authority for the expression 
has chevalier, nor any equivalent in Latin, bacca- 
laureus certanily not suggesting that sense ; and it 
is strange that the corruption should obliterate ev- 
ery trace of the original term. Bachelor is a very 
old word, and is used in early French poetry for a 
young man, as bachelette is for a girl. So also in 
Chaucer, 

" A yonge squire, 
A lover, and a lusty bachelor." 

t Du Cange, Dissertation 9"« sur Joinville. The 
number of men-at-arms whom a banneret ought to 
command was properly fifty. But Olivier de la 
Marche speaks of twenty-five as sufficient; and it 
appears that, in fact, knights-banneret often did not 
bring so many. 

(j Ibid. Olivier de la Marche (Collection des 
Mcmoires, t. viii., p. 337) gives a particular exan> 
pie of this ; and makes a distinction between the 
bachelor, created a banneret on account of his es- 
tate, and the hereditary banneret, who took a pub- 
lic opportunity of requesting the sovereign to un- 
fold his family banner, which he had belbre borne 
wound round his lance. The first was said relever 
baimiere ; the second, entrer en banniere. This 
difference is more fully explained by Daniel, Hist. 



Part II.] 



STATE OF SOCIETY. 



619 



elevated the banneret, gave him no claim 
to miUtary command, except over his own 
dependants or men-at-arms. Chandos 
was stdl a knight-bachelor when he led 
part of the Prince of Wales's army into 
Spain. He first raised his banner at the 
battle of Navarette ; and the narration 
that Froissart gives of the ceremony will 
illustrate the manners of chivalry, and 
the character of that admirable hero, the 
conqueror of Du Guesclin and pride of 
English chivalr}^ wliose fame with pos- 
terity has been a little overshadowed by 
his master's laurels.* What seems more 
extraordinary is, that mere squires had 
frequently the command over knights. 
Proofs of this are almost continual in 
Froissart. But the vast estimation in 
which men held the dignity of knight- 
hood led them sometimes to defer it for 
great part of their lives, in hope of signal- 
izing their investiture by some eminent 
exploit. 

These appear to have been the chief 
Decline of mcaus of nourishing the princi- 
cuivairy. pigg of chivalry among the nobil- 
ity of Europe. But, notwithstanding all 
encouragement, it underwent the usual 
destiny of human institutions. St. Palaye, 
to whom we are indebted for so vivid a pic- 
ture of ancient manners, ascribes the de- 
cline of chivalry in France to the profu- 
sion with which the order was lavished 
under Charles VI., the establishment of 
the companies of ordonnance by Charles 
V!I., and to the extension of knightly 
honours to lawyers and other men of 
civil occupation by Francis I.f But the 
real principle of decay was something 
different from these three subordinate 
circumstances, unless so far as it may 
bear some relation to the second. It 
was the invention of gunpowder that 
eventually overthrew chivalry. From 
the time when the use of fire-arms be- 
came tolerably perfect, the weapons of 
former warfare lost their efficacy, and 
physical force was reduced to a very 
subordinate place in the accomplishments 
of a soldier. The advantages of a disci- 
pliapd infantry became more sensible ; 
ancTthe lancers, who continued till almost 
the end of the sixteenth century to 
charge in a long line, felt the punishment 
of their presumption and indiscipline. 
Even in the wars of Edward III., the dis- 
advantageous tactics of clrivalry must 

de la Milice Fran(;oise, p. 116. Chaiidos's banner 
was unfolded, not cut, at Navarette. We read 
sometimes of esquire-bannerets, that is, of banner- 
ets by descent, not yet knighted. 

* Froissart, part i., c. 211. 

* Mom. sur la Chevalerie, part v. 



have been perceptible ; but the milita- 
ry art had not been sufiiciently studied to 
overcome the prejudices of men eager for 
individual distinction. Tournaments be- 
came less frequent; and, after the fatal 
accident of Henry II., were entirely dis- 
continued in France. Notwithstanding 
the convulsions of the religious wars, the 
sixteenth century was more tranquil than 
any that had preceded ; and thus a large 
part of the nobility passed their lives in 
pacific habits, and, if they assumed the 
honours of chivalry, forgot their natural 
connexion with military prowess. This 
is far more applicable to England, where, 
except from the reign of Edward III. to 
that of Henry VI., chivalry, as a military 
institution, seems not to have found a 
very congenial soil.* To these circum- 
stances, immediately affecting the milita- 
ry condition of nations, we must add the 
progress of reason and literature, which 
made ignorance discreditable even in a 
soldier, and exposed the follies of ro- 
mance to a ridicule which they were 
very ill calculated to endure. 

The spirit of chivalry left behind it a 
more valuable successor. The character 
of knight gradually subsided in that of 
gentleman ; and the one distinguishea 
European society in the sixteenth and 
seventeenth centuries, as much as the 
other did in the preceding ages. A jeal 
ous sense of honour, less romantic, bu\ 
equally elevated, a ceremonious gallantry 
and politeness, a strictness in devotional 
observances, a high pride of birth, and 
feeling of independence upon any sover- 
eign for the dignity it gave, a sympathy 
for martial honour, though more subdued 

* The prerogative exercised by the kings of 
England of compelling men sufficiently qualified 
in point a( estate to take on them the honour of 
knighthood, was inconsistent with the true spirit 
of chivalry. This began, according to Lord Lyt- 
tleton, under Henry 111. — Hist, of Henry II., vol. 
ii., p. 238. Independently of this, several causes 
tended to render England less under the influence 
of chivalrous principles than France or Germany; 
such as her comparatively peaceful state, the 
smaller share she took in the crusades, her inferi- 
ority in romances of knight-errantry, but, above all, 
the democratical character of her laws and govern- 
ment. Still this is only to be understood relatively 
to the two other countries above named ; for chiv- 
alry was always in high repute among us, nor did 
any nation produce more admirable specimens of 
Its excellences. 

I am not minutely acquainted with the state of 
chivalry in Spain, where it seems to have flourished 
considerably. Italy. cxf'Rpt in Naples, and perhaps 
Piedmont, displayed little of its spirit; which 
neither suited the free republics of the twelfth and 
thirteenth, nor the jealous tyrannies of the follow- 
ing centuries. Yet even here we find enough to 
furnish Muratori with materials for his 53d disser- 
tation. 



520 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



by civil habits, are the lineaments which 
prove an indisputable descent. The cav- 
aliers of Charles I. were genuine suc- 
cessors of Edward's knights ; and the 
resemblance is much more striking if 
we ascend to the civil wars of the League. 
Time has effaced much also of this gen- 
tlemanly, as it did before of the chival- 
rous character. From the latter part of 
the seventeenth century, its vigour and 
purity have undergone a tacit decay, and 
yielded, perhaps in every country, to in- 
creasing commercial wealth, more dif- 
fused instruction, the spirit of general 
liberty in some, and of servile obsequi- 
ousness in others, the modes of life in 
great cities, and the levelling customs of 
social intercourse.* 
It is now time to pass to a very differ- 
ent subject. The third head 
under which I classed the im- 
provements of society during the four 
last centuries of the middle ages, was 
that of bterature. But I must apprize 
the reader not to expect any general 
view of literary history, even in the most 
abbreviated manner. Such an epitome 
would not only be necessarily superficial, 
but foreign, in many of its details, to the 
purposes of tliis chapter, which, attempt- 
ing to develop the circumstances that 
gave a new complexion to society, con- 
siders literature only so far as it exer- 
cised a general and powerful influence. 
The private researches, therefore, of a 
single scholar, unproductive of any ma- 
terial effect in his generation, ought not 
to arrest us, nor indeed would a series 
of biographical notices, into which liter- 
ary history is apt to fall, be very instruc- 
tive to a philosophical inquirer. But I 
have still a more decisive reason against 
taking a large range of literary history 
into the compass of this work, founded 
on the many contributions which have 
been made within the last forty years to 
that department, some of them even 
since the commencement of my own 

* The well-known Memoirs of St. Palaye are 
the best repository of interesting and illustrative 
facts respecting cliivalry. Possibly he may have 
relied a little too much on romances, whose pic- 
tures will naturally be overcharged. Froissart 
himself has somewhat of this partial tendency, and 
the manners of chivalrous tmies do not make so 
fair an appearance in Monstrelet. In the Memoirs 
of la Tremouille (Collect, des Mem., t. xiv., p. 
169), we have perhaps the earliest delineation from 
the life of those severe and stately virtues in high- 
born ladies, of which our own country furnishes 
80 many e.xamples in the sixteenth and seventeenth 
centuries, and which were derived from the influ- 
ence of chivalrous principles. And those of Bayard 
in the same collection (t. xiv. and xv.) are a beau- 
tiful exhibition of the best eflects of that discipline. 



labour.* These have diffused so general 
an acquaintance with the literature of 
the middle ages, that I must, in treating 
the subject, either compile secondary in- 
formation from well-known books, or 
enter upon a vast field of reading, with 
little hope of improving upon what has 
been already said, or even acquiring credit 
for original research. I shall therefore 
confine myself to four points : the study 
of civil law ; the institution of universi- 
ties ; the application of modern languages 
to literature, and especially to poetry ; 
and tlie revival of ancient learning. 

The Roman law had been nominally 
preserved ever since the de- „. ., , 

^ . • r 4 u ■ 1 Civil law. 

struclion of the empire ; and a 
great portion of the inhabitants of France 
and Spain, as well as Italy, were govern- 
ed by its provisions. But this was a 
mere compilation from the Theodosian 
code ; which itself contained only the 
more recent laws promulgated after the 
establishment of Cliristianity, with some 
fragments from earlier collections. It 
was made by order of Alaric, king of the 
Visigoths, about the year 500, and it is 
frequently confounded with the Theodo- 
sian code by writers of the dark ages.f 
The code of Justinian, reduced into sys- 
tem after the separation of the two for- 
mer countries from the Greek empire, 
never obtained any authority in them ; 
nor was it received in the part of Italy 
subject to the Lombards. But that this 
body of laws was absolutely unknown in 
the West during any period seems to 
have been too hastily supposed. Some 
of the more eminent ecclesiastics, as 
Hincmar and Ivon of Chartres, occasion- 
ally refer to it, and bear witness to the 
regard which the Roman church had 
uniformly paid to its decisions. | 

The revival of the study of jurispru- 
dence, as derived from the laws of Jus- 
tinian, has generally been ascribed to the 
discovery made of a copy of the Pan- 
dects at Amalfi, in 1135, when that city 
was taken by the Pisans. This fact, 
though not improbable, seems not to 



* Four very recent publications (not to mentioa 
that of Buhle on modern philosophy) enter much 
at large into the middle literature ; those of M. 
Ginguene and M. Sismondi, the History of Eng- 
land by Mr. Sharon Turner, and the Literary 
History of the Middle Ages by Mr. Berington. All 
of these contain more or less useful information 
and judicious remarks ; but that of Ginguene is 
among the most learned and important works of 
this century. I have no hesitation to prefer it, as 
far as its subjects extend, to Tiraboschi. 

t Heineccius, Hist. Juris German., c. i., s. 15. 

t Giannone, 1. iv., c. 6. Seldcn, ad Fletam, 
p. 1071. 



I'art II.] 



STATE OF SOCIETY. 



531 



rest upon sufficient evidence.* But its 
truth is the less material, as it appears 
to be unequivocally proved that the study 
of Justinian's system had recommenced 
before that era. Early in the twelfth 
century, a professor named Irneriusf 
opened a school of civil law at Bologna, 
where he commented, if not on the Pan- 
dects, yet on the other books, the Insti- 
tutes and Code, which were sufficient to 
teach the principles and inspire the love 
of that comprehensive jurisprudence. 
The study of law, having thus revived, 
made a surprising progress ; within fifty 
years Lombardy was full of lawyers, on 
whom Frederick Barbarossa and Alex- 
ander III., so hostile in every other re- 
spect, conspired to shower honours and 
privileges. The schools of Bologna were 
pre-eminent throughout this century for 
legal learning. There seem also to have 
been seminaries at Modena and Mantua ; 
nor was any considerable city without 
distinguished civilians. In the next age 
they became still more numerous, and 
their professors more conspicuous, and 
universities arose at Naples, Padua, and 
other places, where the Roman law was 
the object of peculiar regard. | 

There is apparently great justice in 
the opinion of Tiraboschi, that by acqui- 
ring internal freedom and the right of de- 
termining controversies by magistrates 
of their own election, the Italian cities 
were led to require a more extensive and 
accurate code of written laws than they 
had hitherto possessed. These munici- 
pal judges were chosen from among the 
citizens, and the succession to offices 
was usually so rapid, that almost every 
freeman might expect in his turn to par- 
take in the public government, and con- 
sequently in the administration of jus- 
tice. The latter had always indeed been 
exercised in the sight of the people by 
the count and his assessors under the 
Lombard and Carlovingian sovereigns ; 
but the laws were rude, the proceedings 
tumultuary, and the decisions perverted 
by violence. The spirit of liberty begot 
a stronger sense of right ; and right, it 
was soon perceived, could only be se- 
cured by a common standard. Magis- 
trates holding temporary offices, and 
little elevated, in those simple times, 
above the citizens among whom they 

* Tiraboschi, t. iii., p. 359. Ginguene, Hist. 
Litt. de ritalie, t. i., p. 155. 

t Irnerius is sometimes called Guarnerius, 
sometimes Warnerius ; the German W is changed 
into Gu by the Italians, and occasionally omitted, 
especially in latinizing, for the sake of euphony or 
jiurity. 

% Tiraboschi, t. iv., p. 38 ; t. v., p. 55. 



were to return, could only satisfy the 
suiters, and those who surrounded their 
tribunal, by proving the conformity of 
their sentences to acknowledged authori- 
ties. And the practice of alleging rea- 
sons in giving judgment would of itself 
introduce some uniformity of decision, 
and some adherence to great rules of 
justice in the most arbitrary tribunals ; 
while, on the other hand, those of a free 
country lose part of their title to respect, 
and of their tendency to maintain right, 
whenever, either in civil or criminal 
questions, the mere sentence of a judge 
is pronounced without explanation of its 
motives. 

The fame of this renovated jurispru- 
dence spread very rapidly from Italy 
over other parts of Europe. Students 
flocked from all parts of Bologna; and 
some eminent masters of that school re- 
peated its lessons in distant countries. 
One of these, Placentinus, explained the 
digest at Montpelier before the end of 
the twelfth century ; and the collection 
of Justinian soon came to supersede the 
Theodosian code in the dominions of 
Toulouse.* Its study continued to flour- 
ish in the universities of both these cit- 
ies ; and hence the Roman law, as it is 
exhibited in the system of Justinian, be- 
came the rule of all tribunals in the 
southern provinces of France. Its au- 
thority in Spain is equally great, or at 
least is only disputed by that of the can- 
onists :t and it forms the acknowledged 
basis of decision in all the Germanic tri- 
bunals, sparingly modified by the ancient 
feudal customaries, which the jurists of 
the empire reduce within narrow bounds. | 
In the northern parts of France, where 
the legal standard was sought in local 
customs, the civil law met naturally with 
less regard. But the code of St. Louis 
borrows from that treasury many of its 
provisions, and it was constantly cited in 
pleadings before the parliament of Paris, 
either as obligatory by way of authority, 
or at least as written wisdom, to which 
great deference was shown. ^ Yet its 



* Tiraboschi, t. v. Vaissette, Hist, de Langue- 
doc, t. ii., p. 517 ; t. iii., p. 527 ; t. iv., p. 501. 

t Duck, De Usu Juris civilis, 1. ii-, c. 6. 

i Idem, 1. ii., c. 2. 

^ Idem, 1. ii., c. 5, s. 30,31. Fleury, Hist, du 
Droit Francois, p. 74 (preli.xed to Argou, Institu- 
tions au Droit Fran(;ois, edit. 1787), says that it was 
a great question among lawyers, and still undeci- 
ded (i. e., in 1C74), whether the Roman law was 
the common law in the pays coulumiers, as ta 
those points wherein their local customs were si- 
lent. And, i( 1 understand Denisart (Dictionnaire 
des Decisions, art. Droit-ecrit), the alii rmative pre- 
vailed. It is plain, at least by the Causes Celebres, 
that appeal was continually made to the principles 



622 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



study was long prohibited in the univer- 
sity of Paris, from a disposition of the 
popes to establish exclusively their de- 
cretals, though the prohibition was si- 
lently disregarded.* 

As early as the reign of Stephen, Vaca- 
its intro- *''"^' ^ lawyer of Bologna, taught 
auction at Oxford with great success ; but 
into Kng- tj^e Students of scholastic theol- 
''" ' ogy opposed themselves, from 
some unexplained reason, to this new 
jurisprudence, and his lectures were in- 
terdicted.] About the time of Henry III. 
and Edward I., the civil law acquired 
some credit in England ; but a system 
entirely incompatible with it had estab- 
lished itself in our courts of justice; and 
the Roman jurisprudence was not only 
soon rejected, but became obnoxious.^ 
Everywhere, however, the clergy com- 
bined its study with that of their own 
canons ; it M^as a maxim that every can- 
onist must be a civilian, and that no one 
could be a good civilian unless he were 
also a canonist. In all universities, de- 
grees are granted in both laws conjoint- 
ly ; and in all courts of ecclesiastical ju- 
risdiction, the authority of Justinian is 
cited, when that of Gregory or Clement 
is wanting. § 

I should earn little gratitude for my ob- 
Th eld ^^^^^ diligence, were I to dwell 
civfiian" On the forgotten teachers of a 
little re- science that is hkely soon to be 
garded. forgotten. These elder profes- 
sors of Roman jurisprudence are infect- 
ed, as we are told, with the faults and ig- 
norance of their time ; failing in the ex- 
position of ancient law through incorrect- 
ness of manuscripts and want of subsid- 
iary learning, or perverting their sense 
through the verbal subtleties of scholas- 
tic philosophy. It appears that, even a 
hundred years since, neither Azzo and 



of the civil law in the factums of Parisian advo- 
cates. 

* Crevier, Hist, de I'Universite de Paris, t. i.,p. 
316; t. ii., p. 275. 

t Johan. Salisburiensis, apud Selden ad Fletam, 
p. 1082. 

i Selden, ubi supra, p. 1095—1104. This pas- 
sage is worthy of attention. Yet, notwithstanding 
Selden's authority, I am not satisfied that he has 
not extenuated the effect of Bracton's predilection 
for the maxims of Roman jurisprudence. No early 
lawyer has contributed so much to form our own 
system as Bracton ; and if his deliiutions and rules 
are sometimes borrowed from the civilians, as all 
admit, our common law may have indirectly re- 
ceived greater modification from that influence 
than its professors were ready to acknowledge, or 
even than they knew. A full view of this subject 
is still, 1 think, a desideratum in the liistory of 
English law, which it would illustrate in a very in- 
teresting manner. 

$ Duck. De Usu Juris civilis, 1. i., c. 87. 



Accursius, the principal civilians of the 
thirteenth century, nor Bartolus and 
Baldus, the more conspicuous luminaries 
of the next age, nor the later writings of 
Accolti, Fulgosius, and Panormitanus, 
were greatly regarded as authorities ; un- 
less it were in Spain, where improvement 
is always odious, and the name of Bar- 
tolus inspired absolute deference.* In 
the sixteenth century, Alciatus, and the 
greater Cujacius, became as it were the 
founders of a new and more enlightened 
academy of civil law, from which the la- 
ter jurists derived their lessons. ^^^ ^^^ 
But their names, or at least their science it- 
writings, are rapidly passing to ^«"'.°" ""^ 
the gulf that absorbed their pre- 
decessors. The stream of literature, 
that has so remarkably altered its chan- 
nel within the last century, has left no 
region more deserted than those of the 
civil and canon law. Except among the 
immediate disciples of the papal court, 
or perhaps in Spain, no man, 1 suppose, 
throughout Europe, will ever again un- 
dertake the study of the one; and the 
new legal systems which the moral and 
political revolutions of this age have pro- 
duced and are likely to diffuse, will leave 
little influence or importance to the oth- 
er. Yet, as their character, so their fate 
will not be altogether similar. The can- 
on law, fabricated only for a usurpation 
that can never be restored, will become 
absolutely useless, as if it had never ex- 
isted ; like a spacious city in the wilder- 
ness, though not so splendid and interest- 
ing as Palmyra. But the code of Jus- 
tinian, stripped of its impurer alloy, and 
of the tedious glosses of its commenta- 
tors, will form the basis of other systems, 
and mingling, as we may hope, witli the 
new institutions of philosophical legisla- 
tors, continue to influence the social rela- 
tions of mankind, long after its direct au- 
thority shall have been abrogated. The 
ruins of ancient Rome supplied the mate- 
rials of a new city ; and the fragments 
of her law, which have already been 
wrought into the recent codes of France 
and Prussia, will probably, under other 
names, guide far distant generations' by 
the sagacity of Modestinus and Ulpian.f 



* Gravina, Origines Juris civilis, p. 196. 

+ Those, if any such there be, who feel some cu- 
riosity about the civilians of the middle ages, will 
find a concise and elegant account in Gravina, De 
Origine Juris civilis, p. 166— 206.— (Lips., 1708.) 
Tiraboschi contains perhaps more information ; but 
his prolixity, on a theme so unimportant, is very 
wearisome. Of what use could he think it to dis- 
cuss the dates of all transactions in the lives of 
Bartolus and Baldus (to say nothing of obscurer 
names) when nobody was left to care who Baldus 



Part IL] 



STATE OF SOCIETY. 



523 



The establishment of pubhc schools 
Public in France is owing to Charle- 
schoois magne. At his accession, we 
bvcS^ are assured that no means of 
niagne education existed in his domin- 
ions * and, in order to restore in some 
degree the spirit of letters, he was com- 
pelled to invite strangers from countries 
where learning was not so thoroughly 
extinguished. Alcuin of England, Cle- 
ment of Ireland, Theodulf of Germany, 
were the true Paladins who repaired to 
his court. With the help of these he re- 
vived a few sparks of diligence, and estab- 
lished schools in diflFerent cities of his 
empire ; nor was he ashamed to be the 
disciple of that in his own palace under 
the care of Alcuin.t His two next suc- 
cessors, Louis the Debonair and Charles 
the Bald, were also encouragers of let- 
ters ; and the schools of Lyons, Fialda, 
Corvey, Rheims, and some other cities, 
might be said to flourish in the ninth cen- 
tury.j Li these were taught the trivium 
and quadrivium, a long established divis- 
ion of sciences ; the first comprehending 
grammar, or what we now call philology, 
logic, and rhetoric; the second music, 
arithmetic, geometry, and astronomy. <5> 
But in those ages scarcely anybody mas- 
tered the latter four ; and to be perfect 
in the three former was exceedingly 
rare. All those studies, however, were 
referred to theology, and that in the nar- 
rowest manner ; music, for example, be- 
ing reduced to church chanting, and as- 
tronomy to the calculation of E aster. || 
Alcuin forbade the Latin poets to be 
read ;i and this discouragement of secu- 
lar learning was very general ; though 
some, as for instance Raban, permitted a 
slight tincture of it, as subsidiary to reli- 
gious instructi on.** 

and Bartolus were ? Besides this fault, it is evi- 
dent that Tiraboschi knew very little of law, and 
had not read the civilians of whom he treats; 
whereas Gravina discusses their merits not only 
with legal knowledge, but with an acuteness ot 
criticism, which, to say the truth, Tiraboschi never 
Bhows except on a date or a name. , 

* Ante ipsum dominum Carolum regem in Oral- 
lia nullum fuit studium liberalium artium. Mona- 
chus Engolismensis, apud Launoy, De Scholis per 
occidentem instauratis, p. 5. See too Histoire Lit- 
teraire de la France, t. iv., p. 1. 

+ Idem ibid. There was a sort of literary club 
amont' them, where the members assumed ancient 
names. Charlemagne was called David ; Alcuin, 
Horace , another, Demetas, &c. 

i Hist. Litteraire, p. 217, &c. ., , , a, 

d This division of the sciences is ascribed to ht. 
Au^ustin ■ and was certainly established early in 
the 'sixth century.— Brucker, Historia Critica Phi- 
losophic, t iii., P- 597. 

II Schmidt, Hist, des AUemands, t. u., p. 126 

V Crevier, Hist, de I'Univ. de Pans, t. i., p. 28. 

#* Brucker, t. iu., p. C12. Raban Maurus was 



About the latter part of the eleventh 
century, a greater ardour for in- university 
tellectual pursuits began to show of Pan« 
itself in Europe, which in the twelfth 
broke out into a flame. This was mani- 
fested in the numbers who repaired to 
the pubUc academies or schools of phi- 
losophy. None of these grew so early 
into reputation as that of Pans This 
cannot, indeed, as has been vainly pre- 
tended, trace its pedigree to Charle- 
magne. The first who is said to have 
read lectures at Paris was Remigius of 
Auxerre, about the year 900.* lor tlie 
two next centuries the history of this 
school is very obscure ; and it would be 
hard to prove an unbroken continuity, or 
at least a dependance and connexion 
of its professors. In the year 1100, we 
find William of Champeaux teaching 
logic, and apparently some higher parts 
of philosophy, with much credit. But 
this preceptor was eclipsed by his disci- 
ple, afterward his rival and adversary, 
Peter Abelard, to whose bnlhant ^j,^,^^^ 
and hardy genius the university 
of Paris appears to be indebted for its 
rapid advancement. Abelard was almost 
the first who awakened mankind in the 
ages of darkness to a sympathy with in- 
tellectual excellence. His bold theories, 
not the less attractive perhaps for tread- 
ing upon the bounds of heresy, his im- 
prudent vanity, that scorned the regu- 
larly acquired reputation of older men, 
allured a multitude of disciples, who 
would never have listened to an ordinary 
teacher. It is said, that twenty cardi- 
nals and fifty bishops had been among 
his hearers.! Even in the wilderness, 
where he had erected the monastery of 
Paraclete, he was surrounded by enthu- 
siastic admirers, relinquishing the luxu- 
ries, if so they might be called, of Pans, 
for the coarse living and imperfect ac- 
commodation which that retirement could 
aflFord.t But the whole of Abelard's life 
was the shipwreck of genius; and of 
genius both the source of his own ca- 
lamities and unserviceable to posterity. 
There are few lives of literary men more 
interesting, or more diversified by suc- 
cess and adversity, by glory and humili- 
ation, by the admiration of mankind and 
the persecution of enemies ; nor from 
which, I may add, more impressive les- 
sons of moral prudence may be derived. 
One of Abelard's pupils was Peter Lom- 
bard, afterward archbishop of Pans, and 

chief of the cathedral school at Fulda, in the ninth 

* Crevier, p. do. 
'TcTevier, p. 171. Brucker, p. 677 Tiraboa 
chi, t. iii., p. 275. t Brucker, ?. 750. 



624 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



author of a work called the Book of Sen- 
tences, which obtained the highest au- 
thority among the scholastic disputants. 
The resort of students to Paris became 
continually greater ; they appear, before 
the year 1169, to have been divided into 
nations ;* and probably they had an elect- 
ed rector and voluntary rules of disci- 
pline about the same time. This, how- 
ever, is not decisively proved ; but in 
the last year of the twelfth century, they 
obtained their earliest charter from Philip 
Augustus.! 

The opinion which ascribes the found- 
University ation of the university of Ox- 
of Oxford, ford to Alfred, if it cannot be 
maintained as a truth, contains no intrin- 
sic marks of error. Ingulfus, abbot of 
Croyland, in the earliest authentic pas- 
sage that can be adduced to this point,| 
declares that he was sent from Westmin- 
ster to the school at Oxford, where he 
learned Aristotle, and the two first 
books of TuUy's rhetoric. t^ Since a 
school for dialectics and rhetoric subsist- 
ed at Oxford, a town of but middling 
size, and not the seat of a bishop, we are 
naturally led to refer its foundation to 
one of our kings ; and none who had 
reigned after Alfred appears likely to 
have manifested such zeal for learning. 
However, it is evident that the school 
of Oxford was frequented under Edward 



* The faculty of arts in the university of Paris 
was divided into four nations; those of France, 
Picardy, Normandy, and England. These had 
distinct suffrages in the affairs of the university, 
and consequently, when united, outnumbered the 
three higher faculties of theology, law, and medi- 
cine. In 11G9, Henry II. of England offers to re- 
fer his dispute with Becket to the provinces of the 
school of Paris. 

t Crevier, t. i., p. 279. The first statute regula- 
ting the discipline of the university was given by 
Robert de Cour^on, legate of Honorius III., in 
1215, id., p. 296. 

t No one probably would choose to rely on a 
passage found in one manuscript of Asserius, 
which has all appearance of an interpolation. It 
is evident, from an anecdote in Wood's History of 
Oxford, vol. i., p. 23 (Gutch's edition), that Cam- 
den did not believe in the authenticity of this pas- 
sage, though he thought proper to insert it in the 
Britannia. 

() The mention of Aristotle at so early a period 
might seem to throw some suspicion on this pas- 
sage. But it is impossible to detach it from the 
context ; and the works of Aristotle intended by 
Ingulfus were translations of parts of his logic by 
Boethius and Victorin. — Brucker, p. 678. A pas- 
sage indeed in Peter of Blois's continuation of In- 
gulfus, where the study of Averroes is said to 
have taken place at Cambridge some years before 
he was born, is of a different complexion, and 
must of course be rejected as spurious. In the 
Gesta Comitum Andegavensium, Fulk, count of 
Anjou, who lived about 920, is said to have been 
skilled Aristotelicis et Ciceronianis ratiocination- 
ibus. 



the Confessor. There follows an inter- 
val of above a century, during which we 
have, I believe, no contemporary evi- 
dence of its continuance. But in the 
reign of Stephen, Vacarius read lectures 
there upon civil law ; and it is reasona- 
ble to suppose that a foreigner would 
not have chosen that city if he had not 
found a seminary of learning already 
established. It was probably inconsid- 
erable, and might have been interrupted 
during some part of the preceding centu- 
ry.* In the reign of Henry II., or at 
least of Richard I., Oxford became a 
very flourishing university, and in 1201, 
according to Wood, contained 3000 
scholars.! The earliest charters were 
granted by John. 

If it were necessary to construe the 
word university in the strict university 
sense of a legal incorporation, ofBoiogna. 
Bologna might lay claim to a higher 
antiquity than either Paris or Oxford. 
There are a few vestiges of studies pur- 
sued in that city even in the eleventh 
century :% but early in the next, the revi- 
val of the Roman jurisprudence, as has 
been already noticed, brought a throng 
of scholars round the chairs of its profes- 
sors. Frederick Barbarossa, in 1158, by 
his authentic or rescript entitled Habita, 
took these under his protection, and per- 
mitted them to be tried in civil suits by 
their own judges. This exemption from 
the ordinary tribunals, and even from 
those of the church, was naturally covet- 
ed by other academies ; it was granted 
to the university of Paris by its earliest 
charter from Philip Augustus, Encourage- 
and to Oxford by John. From mem giv^en 
this time the golden age of uni- '" '""versi- 
versities commenced ; and it is 
hard to say whether they were favoured 
most by their sovereigns or by the see 
of Rome. Their history indeed is full 
of struggles with the municipal authori- 
ties, and with the bishops of their several 
cities, wherein they were sometimes the 
aggressors, and generally the conquerors 
From all parts of Europe students resort- 
ed to these renowned seats of learning 

* It may be remarked, that John of Salisbury, 
who wrote in the Tirst years of Henry II. 's reign, 
since his Policraticus is dedicated to Becket, be- 
fore he became archbishop, makes no mention of 
Oxford, which he would probably have done if it 
had been an eminent seat of learning at that time, 

t Wood's Hist, and Antiquities of Oxford, p. 
177. The Benedictins of St. Maur say that there 
was an eminent school of canon law at Oxford 
about the end of the twelfth centurv, to which 
many students repaired from Paris. — Hist. Litt. de 
la France, t. ix., p. 216. 

X Tiraboschi, t. iii., p. 259, et alibi. Muratori, 
Dissert. 43. 



Part II.] 



STATE OF SOCIETY. 



525 



with an eagerness for instruction which 
may astonish those who reflect how little 
of what we now deem useful could be 
imparted. At Oxford, under Henry III., 
it is said that there were 30,000 scholars ; 
an exaggeration which seems to imply 
that the real number was very great.* 
A respectable contemporary writer as- 
serts that there were full 10,000 at Bo- 
logna about the same time.f I have not 
observed any numerical statement as to 
Paris during this age ; but there can be 
no doubt that it was more frequented 
than any other. At the death of Charles 
VII., in 1453, it contained 25,000 stu- 
dents. J In the thirteenth century, other 
universities sprang up in different coun- 
tries : Padua and Naples, under the pat- 
ronage of Frederick II., a zealous and 
useful friend to letters,^ Toulouse and 
Montpelier, Cambridge and Salamanca.]] 
Orleans, which had long been distin- 
guished as a school of civil law, received 
the privileges of incorporation early in 
the fourteenth century ; and Angers be- 
fore the expiration of the same age.^ 
Prague, the earliest and most eminent 
of German universities, was founded in 
1350 ; a secession from thence of Saxon 



* " But among these," says Anthony Wood, " a 
company of varlets, who pretended to be scholars, 
shuffled themselves in, and did act much villany in 
the university by thieving, whoring, quarrellmg, 
&c. They lived under no discipline, neither had 
they tutors ; but only, for fashion sake, would some- 
times thrust themselves into the schools at ordi- 
nary lectures, and when they went to perform any 
mischief, then would they be accounted scholars, 
that so they might free themselves from the juris- 
diction of the burghers," p. 206. If we allow three 
varlets to one scholar, the university will still have 
been very fully frequented by the latter. 

t Tiraboschi, t. iv., p. 47. Azarius, about the 
middle of the fourteenth century, says, the number 
was about 13,000 in his time. — Muratori, Script. 
Rer. Ital., t. xvi., p. 325. 

t ViUaret, Hist, de France, t. xvi., p. 311. This 
may perhaps require to be taken with allowance. 
But Paris owes a great part of its buildings on the 
southern bank of the Seine to the university. The 
students are said to have been about 12,000 before 
1480.— Crevier, t. iv., p. 410. 

^ Tiraboschi, t. iv., p. 43 and 46. 

II The earliest authentic mention of Cambridge 
as a place of learning, if I mistake not, is in Mat- 
thew Paris, who informs us, that in 1209, John 
having caused three clerks of O.^ford to be hanged 
on suspicion of murder, the whole body of scholars 
left that city, and emigrated, some to Cambridge, 
some to Reading, in order to carry on their studies 
(p. 191, edit. 1684). But it may be conjectured, 
with some probability, that they were led to a 
town so distant as Cambridge by the previous es- 
tablishment of academical instruction in that place. 
The incorporation of Cambridge is in 1231 (15 Hen. 
III.), so that there is no great difference in the legal 
antiquity of our two universities. 

IT Crevier, Hist, de TUniversite de Paris, t. ii., p. 
216; t. lii., p. 140 



students, in consequence of the nation- 
ality of the Bohemians and the Hussite 
schism, gave rise to that of Leipsic* 
The fifteenth century produced several 
new academical foundations in France 
and Spain. 

A large proportion of scholars, in most 
of those institutions, were drawn by the 
love of science from foreign countries. 
The chief universities had their own par- 
ticular departments of excellence. Paris 
was unrivalled for scholastic theology ; 
Bologna and Orleans, and afterward 
Bourges, for jurisprudence ; Montpelier 
for medicine. Though national prejudi- 
ces, as in the case of Prague, sometimes 
interfered with this free resort of for- 
eigners to places of education, it was in 
general a wise policy of government, as 
well as of the universities themselves, to 
encourage it. The thirty-fifth article of 
the peace of Bretigni provides for the 
restoration of former privileges to stu- 
dents respectively in the French and Eng- 
lish universities.! Various letters pat- 
ent Avill be found in Rymer's collection, 
securing to Scottish as well as French 
natives a safe passage to their place of 
education. The English nation, including 
however the Flemings and Germans,^ 
had a separate vote in the faculty of arts 
at Paris. But foreign students were not, 
I believe, so numerous in the English 
academies. 

If endowments and privileges are the 
means of quickening a zeal for letters, 
they were liberally bestowed in the three 
last of the middle ages. Crevier eimmer- 
ates fifteen colleges, founded in the uni- 
versity of Paris during the thirteenth cen- 
tury, besides one or two of a still earlier 
date. Two only, or at most three, ex- 
isted in that age at Oxford, and but one 
at Cambridge. In the next two centu- 
ries, these universities could boast, as 
every one knows, of many splendid 
foundations ; though much exceeded in 
number by those of Paris. Considered 
as ecclesiastical institutions, it is not 
surprising that the universities obtained, 
according to the spirit of their age, an 
exclusive cognizance of civil or criminal 
suits aff'ecting their members. This 
jurisdiction was, however, local as well 
as personal, and in reahty encroach- 
ed on the regular police of their cities. 
At Paris the privilege turned to a flagrant 
abuse, and gave rise to many scandalous 
contentions.^ StJfl more valuable ad- 



* Pfeffel, Abrege Chronologique de I'Hist. de 
I'Allemagne, p. 550, 607. 

t Rymer, t. vi., p. 292. . J Crevier, t ii., p. 398. 
^ Crevier and ViUaret, passim. 



526 



EUROPE DURING THE MIDDLE AGES, 



[Chap, IX. 



vantages were those relating to ecclesi- 
astical preferments, of which a large 
proportion was reserved in France to 
academical graduates. Something of 
the same sort, though less extensive, 
may still be placed in the rules respect- 
ing plurahty of benefices in our English 
church. 

This remarkable and almost sudden 
Causes of transition from a total indiffer- 
iheir celeb- ence to all intellectual pursuits 
"■"y- cannot be ascribed perhaps to 

any general causes. The restoration of 
the civil, and the formation of the canon 
law, were indeed eminently conducive to 
it, and a large proportion of scholars in 
most universities confined themselves 
to jurisprudence. But the chief attrac- 
Schoiasiic tion to the studious was the 
philosophy, new scholastic philosophy. The 
love of contention, especially with such 
arms as the art of dialectics supplies to 
an acute understanding, is natural 
enough to mankind. That of specula- 
ting upon the mysterious questions of 
metaphysics and theology is not less so. 
These disputes and speculations, howev- 
er, appear to have excited httle interest, 
till, after the middle of the eleventh cen- 
tury, Roscelin, a professor of logic, re- 
vived the old question of the Grecian 
schools respecting universal ideas, the 
reality of which he denied. This kindled 
a spirit of metaphysical discussion, which 
Lanfranc and Ansehn, successively arch- 
bishops of Canterbury, kept alive ; and 
in the next century, Abelard and Peter 
Lombard, especially the latter, completed 
the scholastic system of philosophizing. 
The logic of Aristotle seems to have been 
partly known in the eleventh century, 
although that of Augustin was perhaps 
in higher estimation ;* in the twelfth it 
obtained more decisive influence. His 
metaphysics, to which the logic might 
be considered as preparatory, were intro- 
duced through translations from the Ara- 
bic, and perhaps also from the Greek, 
early in the ensuing century.f This 



* Brucker, Hist. Grit. Philosophiae, t. iii., p. 678. 

t Id., ibid. Tiraboschi conceives that tlie trans- 
lations of Aristotle made by command of Frederick 
II. were directly from the Greek, t. iv., p. 145 ; and 
censures Brucker for the contrary opinion. Buhle, 
however (Hist, de la Philosophie Moderne, t. i., p. 
696), appears to agree with Brucker. It is almost 
certain thai versions were made from the Arabic 
Aristotle : which itself was not immediately taken 
from the Greek, but from ^Syriac medium. — Gin- 
guene. Hist. Litt. de I'ltaue, t. i., p. 212 (on the 
authority of M. Langl6s). 

It was not only a knowledge of Aristotle that 
the scholastics of Europe derived from the Arabic 
language. His writings had produced in the flour- 
ishing Mahometan kmgdoms a vast number of 



work, condemned at first by the decrees 
of popes and councils, on account of its 
supposed tendency to atheism, acquired 
by degrees an influence, to which even 
popes and councils were obliged to 
yield. The Mendicant Friars, establish- 
ed throughout Europe in the thirteenth 
century, greatly contributed to promote 
the Aristotelian philosophy ; and its final 
reception into the orthodox system of 
the church may chiefly be ascribed to 
Thomas Aquinas, the boast of tlie Do- 
minican order, and certainly the most 
distinguished metaphysician of the mid- 
dle ages. His authority silenced ail scru- 
ples as to that of Aristotle, and the two 
philosophers were treated with equally 
implicit deference by the later school- 
men.* 

This scholastic philosophy, so famous 
for several ages, has since passed away 
and been forgotten. The history of liter- 
ature, like that of empire, is full of revo- 
lutions. Our public libraries are ceme- 
teries of departed reputation ; and the 
dust accumulating upon their untouched 
volumes speaks as forcibly as the grass 
that waves over the ruins of Babylon. 
Few, very few, for a hundred years past, 
have broken the repose of the immense 
works of the schoolmen. None perhaps 
in our own country have acquainted them- 
selves particularly with their contents. 
Leibnitz, however, expressed a wish that 
some one conversant with modern phi- 
losophy would undertake to extract the 



commentators, and of metaphysicians trained in 
the same school. Of these, Averroes, a native of 
Cordova, who died early in the thirteenth century, 
was the most eminent. It would be curious to 
examine more minutely than has hitherto been 
done the original writings of these famous men, 
which no doubt have sufiered in translation. A 
passage in Al Gazel, which Mr. Turner has ren- 
dered from the Latin, with all the disadvantage of 
a double remove from the author's words, appears 
to state the argument in favour of that class of 
nnnmialists, called conceptualists (the only realists 
who remain in the present age), with more clear 
ness and precision than any thing I have seen from 
the schoolmen. Al Gazel died in 1126, and conse- 
quently might have suggested this theory to Abe- 
lard, which however is not probable. — Turner's 
Hist, of England, vol. i., p. 513. 

* Brucker, Hist. Crit. Philosophiae, t. iii. 1 
have found no better guide than Brucker. But he 
confesses himself not to have read the original 
writings of the scholastics; an admission which 
every reader will perceive to be quite necessary. 
Consequently, he gives us rather a verbose decla- 
mation against their philosophy, than any clear 
view of its character. Of the valuable works late- 
ly published in Germany on the history of Philoso- 
phy, I have only seen that of Buhle, which did not 
fall into my hands till I had nearly written these 
pages. Tiedeman and Tenneman are, I believe, 
still untranslated. 



Part II.] 



STATE OF SOCIETY. 



627 



scattered particles of gold which may be 
hidden in their abandoned mines. This 
wish has been at length partially fulfilled 
by three or four of those industrious stu- 
dents and keen metaphysicians, who do 
honour to modern Germany. But most 
of their works are unknown to me except 
by repute ; and as they all appear to be 
formed on a very extensive plan, I doubt 
whether even those laborious men could 
afford adequate time for this ungrateful 
research. Yet we cannot pretend to 
deny, that Roscelin, Anselm, Abelard, 
Peter Lombard, Albertus Magnus, Thom- 
as Aquinas, Duns Scotus, and Ockham, 
were men of acute and even profound 
understandings, the giants of their own 
generation. Even with the slight knowl- 
edge we possess of their tenets, there 
appear through the cloud of repulsive 
technical barbarisms rays of metaphys- 
ical genius which this age ought not 
to despise. Thus, in the works of An- 
selm is found the celebrated argument of 
Des Cartes for the existence of a Deity, 
deduced from the idea of an infinitely 
perfect being. One great object that 
most of the schoolmen had in view was 
to estabhsh the principles of natural the- 
ology by abstract reasoning. This rea- 
soning was doubtless liable to great diffi- 
culties. But a modern writer, who 
seems tolerably acquainted with the sub- 
ject, assures us that it would be difficult 
to mention any theoretical argument to 
prove the divine attributes, or any objec- 
tion capable of being raised against the 
proof, which we do not find in some of 
the scholastic philosophers.* The most 
celebrated subjects of discussion, and 
those on which this class of reasoners 
were most divided, were the reality of 
universal ideas, considered as extrinsic 
to the human mind, and the freedom of 
will. These have not ceased to occupy 
the thoughts of metaphysicians ; but it 
will generally be allowed that the preva- 
lence of the Realists in the former ques- 
tion does not give a favourable impres- 
sion of the scholastic system. | 

* Bnhle, Hist, de la Philos. Moderne, t. i., p. 
723. This author raises, upon the whole, a favour- 
able notion of Anselm and Aquinas ; but he hard- 
ly notices any other. 

t Mr. Turner has, with his characteristic spirit of 
enterprise, examined some of the writings of our 
chief English schoolmen. Duns Scotus and Ock- 
ham (Hist, of Eng.,vol. i.), and even given us some 
extracts from them. They seem to me very friv- 
olous, so far as I can collect their meaning. Ock- 
ham, in particular, falls very short of what I had ex- 
pected ; and his nominalism is strangely different 
from that of Berkeley. We can hardly reckon" a 
man m the right, who is so by accident, and through 
sophistical reasoning. However, a well-known 



But all discovery of truth by means of 
these controversies was rendered hope- 
less by two insurmountable obstacles : 
the authority of Aristotle, and that of the 
church. Wherever obsequious rever- 
ence is substituted for bold inquiry, truth, 
if she is not already at hand, will never 
be attained. The scholastics did not un- 
derstand Aristotle, whose original wri- 
tings they could not read ;* but his name 
was received with implicit faith. They 
learned his peculiar nomenclature, and 
fancied that he had given them realities. 
The authority of the church did them 
still more harm. It has been said, and 
probably with much truth, that their met- 
aphysics were injurious to their theology. 
But I must observe in return, that their 
theology was equally injurious to their 
metaphysics. Their disputes continually 
turned upon questions either involving 
absurdity and contradiction, or at best 
inscrutable by human comprehension. 
Those who assert the greatest antiquity 
of the Roman Catholic doctrine as to the 
real presence, allow that both the word 
and the definition of transubstantiation 
are owing to the scholastic writers. Their 
subtleties were not always so well re- 
ceived. They reasoned at imminent 
peril of being charged with heresy, which 
Roscelin, Abelard, Lombard, and Ock- 
ham, did not escape. In the virulent 
factions that arose out of their metaphys- 
ical quarrels, either party was eager to 
expose its adversary to detraction and 
persecution. The nominalists were ac- 
cused, one hardly sees why, with redu- 
cing, like Sabellius, the persons of the 
Trinity to modal distinctions. The Real- 



article in the Edinburgh Review, No. LIII., p. 
204, gives, from Tenneman, a more favourable ac- 
count of Ockham. 

Perhaps I may have imagined the scholastics to 
be more forgotten than they really are. Within a 
short time, I have met with four living English 
writers who have read parts of Thomas Aquinas ; 
Mr. Turner, Mr. Berington, Mr. Coleridge, and 
the Edinburgh Reviewer. Still I cannot bring my- 
self to think that there are four more in this coun- 
try who could say the same. Certain portions, 
however, of his writings are still read in the course 
of instruction of some Catholic universities. 

* Roger Bacon, by far the truest philosopher of 
the middle ages, complains of the ignorance of 
Aristotle's translators. Every translator, he ob- 
serves, ought to understand his author's subject, 
and the two languages from which and into which 
he is to render the work. But none hitherto, ex- 
cept Boethius, have sufficiently known the lan- 
guages ; nor has one, except Robert Grostete (the 
famous bishop of Lincoln), had a competent ac- 
quaintance with science. The rest make egregi- 
ous errors in both respects. And there is so much 
misapprehension and obscurity in the Aristotelian 
writings as thus translated, that no one under 
stands them.— Opus Majus, p. 45. 



528 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



ists, -with more pretence, incurred the 
imputation of holding a language that sa- 
voured of atheism.* In the cfcitroversy 
Avhich the Dominicans and Franciscans, 
disciples respectively of Thomas Aqui- 
nas and Duns Scotus, maintained about 
grace and free-will, it was of course still 
more easy to deal in mutual reproaches 
of heterodoxy. But the schoolmen were 
in general prudent enough not to defy the 
censures of the church ; and the popes, 
in return for the support they gave to all 
exorbitant pretensions of the Holy See, 
connived at this factious wrangling, which 
threatened no serious mischief, as it did 
not proceed from any independent spirit 
of research. Yet, with all their apparent 
conformity to the received creed, there 
was, as might be expected from the cir- 
cumstances, a great deal of real deviation 
fi'om orthodoxy, and even of infidelity. 
The scholastic mode of dispute, admit- 
ting of no termination, and producing no 
conviction, was the sure cause of skep- 
ticisi^ ; and the system of Aristotle, 
especially with the commentaries of 
Averroes, bore an aspect very unfavour- 
able to natural religion. f The Aristote- 
lian philosophy, even in the hands of the 
master, was like a barren tree, that con- 
ceals its want of fruit by profusion of 
leaves. But the scholastic ontology was 
much worse. What could be more tri- 
fling than disquisitions about the nature 
of angels, their modes of operation, their 
means of conversing, or (for these were 
distinguished) the morning and evening 
state of their understandings ! J Into such 
follies the schoolmen appear to have 
launched, partly because there was less 
danger of running against a heresy in a 
matter where the church had defined so 
little ; partly from their presumption, 
which disdained all inquiries into the hu- 
man mind, as merely a part of physics ; 
and in no small degree through a spirit 
of mystical fanaticism, derived from the 
oriental philosophy, and the latter Pla- 
tonists, which blended itself witli the 
cold-blooded technicalities of the Aristo- 



* Brucker, p. 733, 912. Mr. Turner has fallen 
into some confusion as to this point, and supposes 
the nominahst system to have had a pantheistical 
tendency, not clearly apprehending its characteris- 
'tics, p. 512. 

t Petrarch gives a curious account of the irreli- 
gion that prevailed among the learned at Venice 
and Padua, in consequence ot their unbounded ad- 
miration for Aristotle and Averroes. One of this 
school, conversing with him, after e.xpressmg much 
contempt for the Apostles and Fathers, exclaimed : 
Utinam tu Averroim pati posses, ut videres quanto 
ille tuis his nugatoribus major sit! — Mem. de Pe- 
trarque, t. iii., p. 759. Tiraboschi, t. v., p. 162. 

t Brucker, p. 898. 



telian school.* But this unproductive 
waste of the faculties could not last for 
ever. Men discovered that they had giv- 
en their time for the promise of wisdom, 
and been cheated in the bargain. What 
John of Salisbury observes of the Paris- 
ian dialectitians in his own time, that af- 
ter several years absence he found them 
not a step advanced, and still employed 
in urging and parrying the same argu- 
ments, was equally applicable to the pe- 
riod of centuries. After three or four 
hundred years, the scholastics had not 
untied a single knot, nor added one une- 
quivocal truth to the domain of philos- 
ophy. As this became more evident, the 
enthusiasm for that kind of learning de- 
clined ; after the middle of the fourteenth 
century, few distinguished teachers arose 
among the schoolmen ; and at the revival 
of letters, their pretended science had 
no advocates left but among the prejudi- 
ced or ignorant adherents of established 
systems. How diflerent is the state of 
genuine philosophy, the zeal for which 
will never wear out by length of time or 



* This mystical philosophy appears to have been 
introduced into Europe by John Scotus, whom 
Buhle treats as the founder of the scholastic phi- 
losophy ; though, as it made no sensible progress 
for two centuries after his time, it s^ems more nat- 
ural to give that credit to Roscelin and Anselm. 
Scotus, or Erigena, as he is perhaps more frequent- 
ly called, took up, through the medium of a spuri- 
ous work, ascribed to Dionysius the Areopagite, 
that remarkable system, which has from time im- 
memorial prevailed in some schools of the East, 
wherein all external phenomena, as well as all 
subordinate intellects, are considered as emanating 
from the Supreme Being, into whose essence they 
are hereafter to be absorbed. This system, repro- 
duced under various moditications, and cofnbined 
with various theories of philosophy and religion, 
is perhaps the most congenial to the spirit of soli- 
tary speculation, and consequently the most ex- 
tensively diffused of any which those high themes 
have engendered. It originated, no doubt, in subi 
lime conceptions of Divine omnipotence and ubi 
quity. But clearness of expression, or indeed of 
ideas, being not easily connected with mysticism 
the language of philosophers adopting the theorj- 
of emanation is often hardly distinguishable from 
that of the pantheists. Brucker, vtry unjustly, as 
I imagine from the passages he quotes, accuses 
John Erigena of pantheism. — (Hist. Crit. Philos., 
p. 620.) The charge would, however, be better 
grounded against some whose style might deceive 
an unaccustomed reader. In fact, the philosophy 
of emanation leads very nearly to the doctrine of 
a universal substance, which begot the atheistic 
system of Spinoza, and which appears to have re- 
vived with similar consequences among the meta- 
physicians of (rermany. How very closely the 
language of this oriental philosophy, or even of 
that which regards the Deity as the soul of tho 
world, may verge upon pantheism, will be per- 
ceived (without the trouble of reading the first 
book of Cudworth) from two famous passages of 
Virgil andLucan. — Georg.,1. iv.,v. 219; and Phar 
saha, 1. viii., v. 578. 



Part II.] 



STATE OF SOCIETY, 



529 



change of fashion, because the inquirer, 
unrestrained by authority, is perpetually 
cheered by the discovery of truth in re- 
searches which the boundless riches of 
nature seem to render indefinitely pro- 
gressive ! 

Yet, upon a general consideration, the 
attention paid in the universities to 
scholastic philosophy may be deemed a 
source of improvement in the intellectu- 
al character, when we compare it with 
the perfect ignorance of some preceding 
ages. Whether the same industry would 
not have been more profitably directed, 
if the love of metaphysics had not in- 
tervened, is another question. Philolo- 
gy, or the principles of good taste, de- 
generated through the prevalence of 
school logic. The Latin compositions 
of the twelfth century are better than 
those of the three that followed ; at 
least on the northern side of the Alps. 
I do not, however, conceive that any 
real correctness of taste or general ele- 
gance of style was likely to subsist in 
so imperfect a condition of society. 
These qualities seem to require a certain 
harmonious correspondence in the tone 
of manners, before they can establish a 
prevalent influence over literature. A 
more real evil was the diverting studious 
men from mathematical science. Early 
m the twelfth century, several persons, 
chiefly English, had brought into Europe 
some of the Arabian writings on geome- 
try and physics. In the thirteenth the 
works of Euclid were commented upon 
by Campano ;* and Roger Bacon was 
fully acquainted with them.f Algebra, 

* Tiraboschi, t. iv., p. 150. 

+ There is a very copious and sensible account 
of Roger Bacon in Wood's History of Oxford, vol. 
i., p. 332 (Gutch's edition). I am a little surprised 
that Antony should have found out Bacon's merit. 
It is like an oyster judging of a line-of-battle ship. 
But I ought not to gibe at the poor antiquary when 
he shows good sense. 

The resemblance between Roger Bacon and his 
greater namesake is very remarkable. Whether 
Lord Bacon ever read the Opus Majus, I know not, 
but It is smgular that his favourite quaint expres- 
sion, pr(Ero'^atii'(B scientiarum, should be found in 
that work, though not used with the same allusion 
to the Roman comitia. And whoever reads the 
sixth part of the Opus Majus, upon experimental 
science, must be struck by it as the prototype, in 
spirit, of the Novum Organnm. The same sa.n- 
guirie and sometimes rash confidence in the e/Tect 
of physical discoveries, the same fondness for ex- 
periment, the same preference of inductive to ab- 
stract reasoning, pervade both works. Roger Ba- 
con's philosophical spirit may be illustrated by the 
following passage: Duo sunt modi cognoscendi; 
scilicet per argumentum et experimentum. Ar- 
gumentum concludit et facit nos concludere ques- 
tionem ; sed non certificat neque removet dubita- 
tionem, ut quiescat animus in intuitu veritatis, nisi 
LI 



as <"ir as the Arabians knew it, extending 
to quadratic equations, was actually in 
the hands of some Italians at the com- 
mencement of the same age, and pre- 
served for almost three hundred years as 
a secret, though without any conception 
of its importance. As abstract mathe- 
matics require no collateral aid, they 
may reach the highest perfection in 
ages of general barbarism ; and there 
seems to be no reason why, if the course 
of study had been directed that way, 
there should not have arisen a Newton 
or a La Place, instead of an Aquinas or 
an Ockham. Tlie knowledge displayed 
by Roger Bacon and by Albertus Mag- 
nus, even in the mixed mathematics, 
under every disadvantage from the im- 
perfection of instruments and the want 
of recorded experience, are sufficient to 
inspire us with regret that their contem- 
poraries were more inclined to astonish- 
ment than to emulation. These inqui- 
ries indeed were subject to the ordeal 
of fire, the great purifier of books and 
men ; for if the metaphysician stood a 
chance of being burnt as a heretic, 
the natural philosopher was in not less 
jeopardy as a magician.* 

A far more substantial cause of intel- 
lectual improvement was the cultivation 
development of those new Ian- or the new 
guages that sprang out of the ■''"suagea. 
corruption of Latin. For three or four 
centuries after what was called the ro- 
mance tongue was spoken in France, 
there remain but few vestiges of its em- 
ployment in writing ; though we cannot 
draw an absolute inference from our 
want of proof, and a critic of much au- 
thority supposes translations to have 
been made into it for religious purposes 
from the time of Charlemagne. f yy^^-^^^^^ „f 
During this period the Ian- the romance 
guage was split into two very tongue imo 
separate dialects, the regions '"'° '^'^'^'s- 
of which may be considered, though by 
no means strictly, as divided by the 

earn inveniat via experientiae ; quia multi habent 
argumenta ad scibilia, sed quia non habent experi- 
entiam, negligunt ea, neque vitant nociva nee 
pe^sequuntur bona. Si enim aliquis homo, qui nun- 
quam vidit ignem, probavit per argumenta sufficien- 
lia quod ignis comburit et lasdit res et destruit, nun- 
quam propter hoc quiesceret animus audientis, nee 
ignem vicaret antequam poneret manum vel rem 
combustibilem ad ignem, ut per experientiam pro- 
baret quod argumentum edocebat ; sedassumti ex- 
perientia combustionis certilicatur animus et qui- 
escit in fulgore veritatis, quo argumentum non suf 
ficit, sed experientia, p. 446. 

* See the fate of Cecco d' Ascoli in Tiraboschi, 
t. v., p. 174. 

t Le Boeuf, M^m. de I'Acad. des Inscript. t, 
xvii,, p. 711. 



530 



EUROPE DURING THE MIDDl E AGES. 



[Chap. IX. 



Loire. These Avere called the Langiie 
d'Oil and the Langue d'Oc ; or, in more 
modern terms, the French and Proven<^al 
dialects. In the latter of these I know 
of nothing which can even by name be 
traced beyond the year 1100. About 
that time, Gregory de Bechada, a gentle- 
man of Limousin, recorded the memo- 
rable events of the first crusade, then re- 
cent, in a metrical history of great 
length.* This poem has altogether per- 
ished ; which, considering the populari- 
ty of its subject, as M. Sismondi justly 
remarks, would probably not have been 
the case if it had possessed any merit. 
But very soon afterward, a multitude of 
poets, like a swarm of summer insects, 
appeared in the southern provinces of 
Troubadours France. These were the cel- 
ofProvente. ebrated Troubadours, whose 
fame depends far less on their positive 
excellence than on the darkness of pre- 
ceding ages, on the temporary sensation 
they excited, and their permanent influ- 
ence on the state of European poetry. 
From William, count of Poitou, the ear- 
liest troubadour on record, who died -in 
1126, to their extinction about the end 
of the next century, there were probably 
several hundred of these versifiers in the 
language of Provence, though not al- 
ways natives of France. Millot has 
published the lives of one hundred and 
forty-two, besides the names of many 
more whose history is unknown ; and a 
still greater number, it cannot be doubt- 
ed, are unknown by name. Among 
those poets are reckoned a king of Eng- 
land (Richard I.), two of Aragon, one of 
Sicily, a dauphin of Auvergne, a count of 
Foix, a prince of Orange, many noble- 
men, and several ladies. One can hard- 
ly pretend to account for this sudden and 
transitory love of verse ; but it is mani- 
festly one symptom of the rapid impulse 
which the human mind received in the 
twelfth century, and contemporaneous 
with the severer studies that began to 
flourish in the universities. It was en- 
couraged by the prosperity of Langue- 
doc and Provence, undisturbed, compara- 
tively with other countries, by internal 

* Gregorius, cognomento Bechada, de Castro 
de Turribus, professione miles, subtilissimi ingenii 
vir, aliquantulum imbutus Uteris, horum gesta 
prceliorum materna lingua rythmo vvilgari, ut pop- 
ulus pleniterintelligeret, ingens volumen decanter 
composuit, et ut vera et faceta verba proferret, duo- 
decim annoruna spatium super hoc opus operam de- 
dit. Ne vero vilesceret propter verbum vulgare, non 
sine prascepto episcopi Eustorgii, et consilio Gau- 
berti Norinanni hoc opus aggressus est. I traii- 
ficribe this from M. Heeren's Essai sur les Croi- 
sades, p. 447 ; whose reference is to Labb6, Biblio- 
theca nova MSS., t. ii., p. 296. 



warfare, and disposed by the temper of 
their hihabitants to feel with voluptuous 
sensibility the charm of music and am- 
orous poetry. But the tremendous storm 
that fell upon Languedoc in the crusade 
against the Albigeois shook oflf the flow- 
ers of Provencal verse ; and the final ex- 
tinction of the fief of Toulouse, with the 
removal of the counts of Provence to 
Naples, deprived the troubadours of theii 
most eminent patrons. An attempt was 
made in the next century to revive them, 
by distributing prizes for the best compo- 
sition in the Floral Games of Toulouse, 
which have sometimes been erroneous- 
ly referred to a higher antiquity.* This 
institution perhaps still remains ; but, 
even in its earliest period, it did not es- 
tablish the name of any Provencal poet. 
Nor can we deem those fantastical so- 
lemnities, styled Courts of Love, where 
ridiculous questions of metaphysical gal- 
lantry were debated by poetical advo- 
cates, under the presidency and arbitra- 
tion of certain ladies, much calculated 
to bring forward any genuine excellence. 
They illustrate, however, what is more 
immediately my own object, the general 
ardour for poetry, and the manners of 
those chivalrous ages.f 

The great reputation acquired by the 
troubadours, and panegyrics Their poeti- 
lavished on some of them by cai character. 
Dante and Petrarch, excited a curios- 
ity among literary men which has been 
a good deal disappointed by further ac- 
quaintance. An excellent French anti- 
quarian of the last age. La Curne de St. 
Palaye, spent great part of his life in 
accumulating manuscripts of Provenc^al 
poetry, very httle of which had ever been 
printed. Translations from part of this 
collection, with memorials of the writers, 
were published by Millot; and we cer- 
tainly do not often meet with passages 
in his three volumes which give us any 
poetical pleasure. J Some of the original 
poems have since been published, and 
the extracts made from them by the re- 
cent historians of southern literature are 

* De Sade, Vie de Petrarque, t. i., p. 155. Sis- 
mondi, Litt. du Midi,t. i., p. 228. 

t For the Courts of Love, see De Sade, Vie de 
Petrarque, t. ii., note 19. Le Grand, Fabliaux, t. 
i.,p. 270. Roquefort, Etat de la Poesie P>an(;oise, 
p. 94 I have never had patience to look at the 
older writers who have treated this tiresome sub- 
ject. It is a satisfaction to reflect, that the coun- 
try which has produced more eminent and origi- 
nal poets than any other has never been infected 
by the fopperies of academies and their prizes. 
Such an institution as the Society degli Arcadi 
could at no time have endured public ridicule in 
England for a fortnight. 

t Histoire Litt. des Troubadours, Pans, 1774. 



Part II.] 



STATE OF SOCIETY. 



631 



rather superior. The troubadours chiefly- 
confined themselves to subjects of love, 
or rather gallantry, and to satires (sir- 
ventes) which are sometimes keen and 
spirited. No romances of chivalry, and 
hardly any tales, are found among their 
works. There seems a general defi- 
ciency of imagination, and especially of 
that vivid description which distinguishes 
works of genius in the rudest period of 
society. In the poetry of sentiment, 
their favourite province, they seldom at- 
tain any natural expression, and conse- 
quently produce no interest. I speak, of 
course, on the presumption that the best 
specimens have been exhibited by those 
who have undertaken the task. It must 
be allowed, however, that we cannot 
judge of the troubadours at a greater dis- 
advantage than through the prose trans- 
lations of Millot. Their poetry was en- 
tirely of that class which is alhed to 
music, and excites the fancy or feelings 
rather by the power of sound than any 
stimulancy of imagery and passion. Pos- 
sessing a flexible and harmonious lan- 
guage, tliey invented a variety of metri- 
cal ai-rangements, perfectly new to the 
nations of Europe. The Latin hymns 
were striking, but monotonous, the metre 
of the northern French unvaried ; but in 
Proven(^al poetry almost every length of 
verse, from two syllables to twelve, and 
the most intricate disposition of rhymes, 
were at the choice of the troubadour. 
The canzoni, the sestine, all the lyric 
metres of Italy and Spain, were bor- 
rowed from his treasury. With such a 
command of poetical sounds, it was natu- 
ral that he should inspire delight into 
ears not yet rendered familiar to the arti- 
fices of verse ; and even now the frag- 
ments of these ancient lays, quoted by 
M. Sismondi and M. Ginguene, seem to 
possess a sort of charm that has evapo- 
rated in translation. Upon this harmony, 
and upon the facility with which mankind 
are apt to be deluded into an admiration 
of exaggerated sentiment in poetry, they 
depended for their influence. And, how- 
ever vapid the songs of Provence may 
seem to our apprehensions, they were 
undoubtedly the source from which poe- 
try for many centuries derived a great 
portion of its habitual language.* 

* Two very modern French writers, M. Gin- 
guene (Histoire Litteraire d'ltalie, Paris, 1811) and 
M. Sismondi (Litterature du Midi de I'Europe, 
Paris, 1813) have revived the poetical history of the 
troubadours. To them, still more than to Millot 
and Tiraboschi, I would acknowledge my obliga- 
tions for the little I have learned m respect of 
this forgotten school of poetry. Notwithstanding, 
however, the heaviness of Millet's work, a fault 
L13 



It has been maintained by some anti- 
quaries that the northern ro- Northern 
mance, or what we properly call French 
French, was not formed until the poe^y an<l 
tenth century, the common dia- '"^°*®" 
lect of all France having previously re- 
sembled that of Languedoc. This hy- 
pothesis may not be indisputable; but 
the question is not likely to be settled, 
as scarcely any written specimens of 
romance, even of that age, have sur- 
vived.* In the eleventh century, among 
other more obscure productions both in 
prose and metre, there appears what, if 
unquestioned as to authenticity, would be 
a valuable monument of this language ; 
the laws of William the Conqueror. 
These are preserved in a manuscript of 
Ingulfus's History of Croyland, a blank 
being left in other copies where they 
should be inserted.! They are written 
in an idiom so far removed from the 
Provenc^al, that one would be disposed 
to think the separation between these 
two species of romance of older standing 
than is commonly allowed. But it has 
been thought probable that these laws, 
which in fact were a mere repetition of 
those of Edward the Confessor, were 
originally published in Anglo-Saxon, the 
only language intelligible to the people, 
and translated, at a subsequent period, 
by some Norman monk into French. t 
This, indeed, is not quite satisfactory, as 
it would have been more natural for such 
a transcriber to have rendered them into 
Latin ; and neither William nor his suc- 
cessors were accustomed to promulgate 
any of their ordinances in the vernacular 
language of England. 



not imputable to himself, though Ritson, as I re- 
member, calls him, in his own polite style, "a 
blockhead," it will always be useful to the inquirer 
into the manners and opinions of the middle ages, 
from the numerous illustrations it contains of two 
general facts ; the extreme dissoluteness of morals 
among the higher ranks, and the prevailing ani- 
mosity of all classes against the clergy. 

* Hist. Liu. de la France, t. vii., p. 58. Le 
Bneuf, according to these Benedictins, has pub- 
lished some poetical fragments of the tenth centu- 
ry ; and they quote part of a charter as old as 940 
in romance, p. 59. But that antiquary, in a me- 
moir printed in the seventeenth volume of the 
Academy of Inscriptions, which throws more light 
on the infancy of the French language than any 
thing within my knowledge, says only that the 
earliest specimens of verse in the royal library are 
of the eleventh century au plus tard, p. 717. M. 
de la Rue is said to have found some poems of the 
eleventh century in the British Museum.— Roque- 
fort, Etat de la Poesie Fran(-oise, p. 20G. Le 
Boeufs fragment may be found in this work, p. 379 ; 
it seems nearer to the Proven(;al than the French 
dialect. 

t Gale, XV. Script., t. i., p. 88. 

t Ritson's Dissertation on Romance, p. 66. 



532 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



The use of a popular language be- 
came more common after the year 1100. 
Translations of some books of Scripture 
and acts of saints were made about that 
time, or even earlier, and there are 
French sermons of St. Bernard, from 
which extracts have been published, in 
the royal library at Paris.* In 1126, a 
charter was granted by Louis VL to the 
city of Beauvais in French. f Metrical 
compositions are in general the first 
literature of a nation, and even if no dis- 
tinct proof could be adduced, we might 
assume their existence before the twelfth 
century. There is, however, evidence, 
not to mention the fragments printed by 
Le Boeuf, of certain lives of saints trans- 
lated into French verse by Thibault de 
Vernon, a canon of Rouen, before the 
middle of the preceding age. And we 
are told that Taillefer, a Norman min- 
strel, recited a song or romance on the 
deeds of Roland, before the army of his 
countrymen, at the battle of Hastings in 
1066. Philip de Than, a Norman subject 
of Henry L, seems to be the earliest poet 
whose works as well as name have readi- 
ed us, unless we admit a French transla- 
tion of the work of one Marbode upon 
precious stones to be more ancient. | 
This de Than wrote a set of rules for 
computation of time, and an account of 
different calendars. A happy theme for 
inspiration, without doubt ! Another per- 
formance of the same author is a trea- 
tise on birds and beasts, dedicated to Ad- 
elaide, queen of Henry L^ But a more 
famous votary of the muses was Wace, 
a native of Jersey, who, about the begin- 
ning of Henry H.'s reign, turned Geof- 
frey of Monmouth's history into French 
metre. Besides this poem, called Le 
Brut d'Angleterre, he composed a series 
of metrical histories, containing the tran- 
sactions of the dukes of Normandy, from 
RoUo, their great progenitor, who gave 
names to the Roman de Rou, down to 
his own age. Other productions are as- 

* Hist. Litt., t. ix., p. 149. Fabliau.x par Barba- 
san, vol. i., p. 9, edit. 1808. M6m. de I'Academie 
des Inscr., t. xv. and xvii., p. 714, &c. 

+ Mabillori speaks of this as the oldest French 
instrnment he had seen. But the Benedictins 
quote some of the eleventh century. — Hist. Litt., t. 
vii., p. 59. This charter is supposed by the au- 
thors of Nouveau Traite de Di|)loniatique to be 
translated from the Latin, t. iv., p. 519. French 
charters, they say, are not common before the age 
of Louis IX. ; and this is confirmed by those pub- 
lished in Martenne's Thesaurus Anecdotorum, 
which are very commonly in French from his 
reign, but hardly ever before. 

X Ravaliere Revel, de la Langue Fran9oise, p. 
116, doubis the age of this translation. 

^ Archaeologia, vols. xii. and xiii. 



cribed to Wace, who was at least a pro- 
lific versifier, and, if he seem to deserve 
no higher title at present, has a claim to 
indulgence, and even to esteem, as hav- 
ing far excelled his contemporaries, with- 
out any superior advantages of knowl- 
edge. In emulation, however, of his 
fame, several Norman writers addicted 
themselves to composing chronicles, or 
devotional treatises in metre. The court 
of our Norman kings was to the early 
poets in the Langue d'Oil, what those of 
Aries and Toulouse were to the trouba- 
dours. Henry I. was fond enough of 
literature to obtain the surname of Beau- 
clerc ; Henry II. was more indisputably 
an encourager of poetry ; and Richard I. 
has left compositions of his own in one 
or other (for the point is doubtful) of the 
two dialects spoken in France.* 

If the poets of Normandy had never 
gone beyond historical and reli- Norman ro- 

gioUS subjects, they would prob- mancesand 

ably have had less claim to our '^'''*" 
attention than their brethren of Provence. 
But a diff'erent and far more interesting 
species of composition began to be culti- 
vated in the latter part of the twelfth 
century. Without entering upon the 
controverted question as to the origin of 
romantic fictions, referred by one party 
to the Scandinavians, by a second to the 
Arabs, by others to the natives of Brit- 
any, it is manifest that the actual stories 
upon which one early and numerous 
class of romances was founded are rela- 
ted to the traditions of the last people. 
These are such as turn upon tlie fable of 
Arthur; for though we are not entitled 
to deny the existence of such a person- 
age, his story seems chiefly the creation 
of Celtic vanity. Traditions current in 
Britany, though probably derived from 
this island, became the basis of Geoft'rey 
of Monmouth's Latin prose, which, as 
has been seen, was transfused into French 
metre by Wace.t The vicinity of Nor- 
mandy enabled its poets to enrich their 
narratives with other Armorican fictions, 
all relating to the heroes who had sur- 
rounded the table of the son of Uther. An 

« Millot says that Richard's sirventes (satirical 
songs) have appeared in French, as well as Pro- 
ven(;al, but that the former is probably a translation. 
— Hist, des Troubadours, vol. i., p. 54. Yet I have 
met with no writer who quotes them in the latter 
language, and M. Ginguene, as well as Le Grand 
d'Aussy, consider Richard as a trouveur. 

t This derivation of the romantic stories of Ar- 
thur, which Le Grand d'Aussy ridiculously attrib- 
utes to the jealousy entertained by the English of 
the renown of Charlemagne, is stated in a very 
perspicuous and satisfactory manner by Mr. Ellis 
in his; Specimens of Early English Mi <rical Ro- 
, mances. 



Part Il.J 



STATE OF SOCIETY. 



533 



equally imaginary history of Charlemagne 
gave rise to a new family of romances. 
The authors of these fictions were call- 
ed Trouveurs, a name obviously identical 
with that of Troubadours. But, except 
in name, there was no resemblance be- 
tween the minstrels of the northern and 
southern dialects. The invention of one 
class was turned to description, that of 
the other to sentiment; the first were 
epic in their form and style, the latter 
almost always lyric We cannot per- 
haps give a better notion of their dissim- 
ilitude, than by saying that one school 
produced Chaucer, and the other Pe- 
trarch. Besides these romances of chiv- 
alry, the trouveurs displayed their pow- 
ers of lively narration in comic tales or 
fabliaux (a name sometimes extended to 
the higher romance), which have aided 
the imagination of Boccace and La Fon- 
taine. These compositions are certainly 
more entei-taining than those of the trou- 
badours ; but, contrary to what I have 
said of the latter, they often gain by ap- 
pearing in a modern dress. Their 
versification, which doubtless had its 
charm, when listened to around the 
hearth of an ancient castle, is very lan- 
guid and prosaic, and suitable enough to 
the tedious prolixity into which the nar- 
rative is apt to fall ; and though we find 
many sallies of that arch and sprightly 
simphcity which characterizes the old 
langnage of France as well as England, 
it requires, upon the whole, a factitious 
taste to relish these Norman tales, con- 
sidered as poetry in the higher sense of 
the word, distinguished from metrical fic- 
tion. 

A manner very different from that of 
Roman de the fabliaux was adopted in the 
la Rose. Roman de la Rose, begun by 
WiUiam de Loris about 1250, and com- 
pleted by John de Meun half a century 
later. This poem, which contains about 
16,000 lines in the usual octo-syllable 
verse, from which the early French wri- 
ters seldom deviated, is an allegorical 
vision, wherein love, and the other pas- 
sions or qualities connected with it, pass 
over the stage, without the intervention, 
I believe, of any less abstract personages. 
Though similar allegories were not un- 
known to the ancients, and, which is more 
to the purpose, may be found in other 
productions of the thirteenth century, 
none had been constructed so elaborate- 
ly as that of the Roman de la Rose. Cold 
and tedious as we now consider this spe- 
cies of poetry, it originated in the crea- 
tive power of imagination, and appealed 
to more refined feeling than the common 



metrical narratives could excite. This 
poem was highly popular in the middle 
ages, and became the source of those 
numerous allegories which had not ceas- 
ed in the seventeenth century. 

The French language was employed in 
prose as well as in metre. In- works ia 
deed, it seems to have had almost Frtncu 
an exclusive privilege in this re- p"*^- 
spect. The language of Oil, says Dante, 
in his treatise on vulgar speech, prefers 
its claim to be ranked above those of Oc 
and Si (Provengal and Italian), on the 
ground that all translations or composi- 
tions in prose have been written therein, 
from its greater facility and grace ; such 
as the books compiled from the Trojan 
and Roman stories, the delightful fables 
about Arthur, and many other works of 
history and science.* I have mentioned 
already the sermons of St. Bernard, and 
translations from Scripture. The laws 
of the kingdom of Jerusalem purport to 
have been drawn up immediately after 
the first crusade ; and though their lan- 
guage has been materially altered, there 
seems no doubt that they were original- 
ly compiled in French. j Besides some 
charters, there are said to have been 
prose romances before the year 1200. f 
Early in the next age, Ville Hordouin, 
seneschal of Champagne, recorded the 
capture of Constantinople in the fourth 
crusade, an expedition, the glory and re- 
ward of which he had personally shared, 
and, as every original work of prior date 
has either perished, or is of small im- 
portance, may be deemed the father of 
French prose. The establishments of 
St. Louis, and the law treatise of Beau- 

* Prose e Rime di Dante, Venez, 1758, t. iv., p. 
261. Dante's words, biblia cum Trojanorum Ro- 
manorumque gestibus compilata, seem to bear no 
other meaning than what I have given. But there 
may be a doubt whether biblia is ever used except 
for the Scriptures ; and the ItaHan translator ren- 
ders It, ciofe la bibbia, i fatti de i Trojani, e de i Ro- 
mani. In this case something is wrong in the ori- 
ginal Latin, and Dante will have alluded to the 
translations of parts of Scripture made into French, 
as mentioned in the text. 

t The Assises de Jerusalem have undergone two 
revisions; one in 1250, by order of John d'Ibelin, 
count of Jaffa, and a second m 1369, by sixteen 
commissioners chosen by the states of the kingdom 
of Cyprus. Their language seems to be such as 
might be expected from the time of the former re- 
vision. 

X Several prose romances were written or trans- 
lated from the Latin about 1170, and afterward. 
Mr. Ellis seems inclined to dispute their antiquity. 
But, besides the authorities of La Ravali^re and 
Tressan, the latter of which is not worth much, 8 
late very extensively informed writer seems to 
have put this matter out of doubt.— Roquefort Fia- 
mericourt, F.tat de la Po^sie Franc-aise dans les 
12'n« et IS""' si&cles. Paris, 1815, p. 147. 



534 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



manoir, fill up the interval of the thir- 
teenth century, and before its conclusion 
we must suppose the excellent memoirs 
of Joinville to have been composed, 
since they are dedicated to Louis X., in 
1315, when the author could hardly be 
less than ninety years of age. Without 
prosecuting any farther the history of 
French literature, I will only mention the 
translations of Livy and Sallust, made in 
the reign and by the order of John, with 
those of Cesar, Suetonius, Ovid, and parts 
of Cicero, which are due to his successor 
Charles V.* 

I confess myself wholly uninformed as 
Spanish to the Original formation of the 
language. Spanish language, and as to the 
epoch of its separation into the two prin- 
cipal dialects of Castile and Portugal or 
Gallicia ;f nor should 1 perhaps have al- 
luded to the literature of that peninsula, 
were it not for a remarkable poem which 
shines out among the minor lights of 
those times. This is a metrical life of 
the Cid Ruy Diaz, written in a barba- 
rous style and with the rudest inequality 
of measure, but with a truly Homeric 
warmth and vivacity of delineation. It 
is much to be regretted that the author's 
name has perished, but its date seems to 
be not later than the middle of the twelfth 
century, while the hero's actions were 
yet recent, and before the taste of Spain 
had been corrupted by the Proven§al 
troubadours, whose extremely different 
manner would, if it did not pervert the 
poet's genius, at least have impeded his 
popularity. A very competent judge has 

* Villaret, Hist, de France, t. xi., p. 121. De 
Sade, Vie de Petrarque, t. iii., p. 548. Charles V. 
had more learning than most princes of his time. 
Christine de Pisan, a lady who has written me- 
moirs, or rather a eulogy of him, says that his fa- 
ther le fist mtrodire en lettres moult suffisamment, 
et tant que competemment entendoit son Latin, et 
souffisamment scavoit les regies de grammaire ; la 
quelle chose pleust a dieu qu' amsi fast accoutu- 
mee entre les princes. — Collect, de Mem., t. v., p. 
103, 190, &c. 

t The earliest Spanish that I remember to have 
seen is an instrument in Martenne, Thesaurus 
Anecdotorum, t. i., p. 263; the date of which is 
1095. Persons more conversant with the antiqui- 
ties of that country may possibly go farther back. 
Another of 1101 is published in Marina's Teoria de 
las Cortes, t. iii., p. 1. It is in a Vidimus by Peter 
the Cruel, and cannot, I presume, have been a 
■ translation from the Latin. Yet the editors of 
Nouveau Tr. de Diplom. mention a charter of 
1243 as the earliest they are acquainted with in 
the Spanish language, t. iv., p. 525. 

Charters in the German language, according to 
the same work, first appear in the tune of the Em- 
peror Rodolph, after 1272, and became usual m the 
next century, p. 523. But Struvius mentions an 
instrument of 1235 as the earliest in German. — 
Corp. Hist. Germ., p. 457. 



pronounced the poem of the Cid to be 
"decidedly and beyond comparison the 
finest in the Spanish language." It is at 
least superior to any that was written in 
Europe before the appearance of Dante.* 
A strange obscurity envelops the in- 
fancy of the Italian language, gg^, ^,^j_ 
Though it is certain that gram- lers in iiie 
matical Latin had ceased to be ''^''^i- 
employed in ordinary discourse, at least 
from the time of Charlemagne, we have 
not a single passage of undisputed au- 
thenticity, in the current idiom, for near- 
ly four centuries afterward. Though Ital- 
ian phrases are mixed up in the barba- 
rous jargon of some charters, not an in- 
strument is extant in that language be- 
fore the year 1200 ; unless we may reck- 
on one in the Sardinian dialect (which, I 
believe, was rather Proven(;'al than Ital- 
ian), noticed by Muralori.f Nor is there 
a vestige of Italian poetry older than a 
few fragments of Ciullo d'Alcamo, a Si- 
cilian, who must have written before 
1193, since he mentions Saladin as then 
living.| This may strike us as the more 
remarkable, when we consider the polit- 
ical circumstances of Italy in the elev- 
enth and twelfth centuries. From the 
struggles of her spirited republics against 
the emperors, and their internal factions, 
we might, upon all general reasoning, an- 
ticipate the early use and vigorous culti- 
vation of their native language. Even if 
it were not yet ripe for historians and 
philosophers, it is strange that no poet 
should have been inspired with songs of 
triumph or invective by the various for- 
tunes of his country. But, on the con- 
trary, the poets of Lombardy became 
troubadours, and wasted their genius in 
Proven(;al love-strains at the courts of 
princes. The Milanese and other Lom- 
bard dialects Avere indeed exceedingly 
rude, but this rudeness separated them 
more decidedly from Latin ; nor is it pos- 
sible that the Lombards could have em- 
ployed that language intelligibly for any 
public or domestic purpose. And indeed, 
in the earliest Italian compositions that 

* An extract from this poem was published in 
1808, by Mr. Southey, at the end of his "Chroni- 
cle of the Cid," the materials of which it partly 
supplied, accompanied by an excellent version by 
a gentleman, who is distinguished, among many 
other talents, for an unrivalled felicity in expres- 
sing the peculiar manner of authors whom he 
translates or imitates. M. Sisinondi has given 
other passages, in the third volume of his essay on 
Southern Literature. This popular and elegant 
work contains some interesting and not very com- 
mon information as to the early Spanish poets m 
the Proven(;al dialect, as well as those who wrote 
in Castilian. 

t Dissert. 32. % Tiraboschi, t. iv., p. 340 



Part II.] 



STATE OF SOCIETY. 



535 



have been published, the new language is 
so thoroughly formed, that it is easy to 
infer a very long disuse of that from 
winch it was derived. The Sicilians 
claim the glory of having first adapted 
their own harmonious dialect to poetry. 
Frederick II. both encouraged their art 
and cultivated it; among the very first 
essays of Italian verse we find his pro- 
ductions and those of his chancellor, 
Piero delle Vigne. Thus Italy was des- 
tined to owe the beginnings of her na- 
tional literature to a foreigner and an 
enemy. These poems are very short and 
very (ew ; those ascribed to St. Francis 
about the same time are hardly distin- 
guishable from prose ; but after the mid- 
dle of the thirteenth century, the Tuscan 
poets awoke to a sense of the beauties 
which their native language, refined from 
the impurities of vulgar speech,* could 
display ; and the genius of Itahan litera- 
ture was rocked upon the restless waves 
of the Florentine democracy. Ricordano 
Malespini, the first historian, and nearly 
the first prose writer in Italian, left me- 
morials of the republic down to the year 
1281, which was that of his death, and it 
was continued by Giacchetto Malespini 
to 1286. These are little inferior in pu- 
rity of style to the best Tuscan authors ; 
for it is the singular fate of that language 
to have spared itself all intermediate 
stages of refinement, and starting the last 
in the race, to have arrived almost in- 
stantaneously at the goal. There is an 
interval of not much more than half a 
century between the short fragment of 
CiuUo d'Alcamo, mentioned above, and 
the poems of Guido Guinizzelli, Guitone 
d'Arezzo, and Guido Cavalcante; which, 
in their diction and turn of thought, are 
sometimes not unworthy of Petrnarch-t 



* Dante, in his treatise De vulgari Eloquentia, 
reckons fourteen or fifteen dialects, spoken in dif- 
ferent parts of Italy, all of which were debased by 
impure modes of expression. But the "noble, prin- 
cipal, and courtly Italian idiom," was that which 
belonged to every city, and seemed to belong to 
none, and which, if Italy had a court, would be the 
language of that court, p. 274, 277. 

Allowing for the metaphysical obscurity in 
which Dante chooses to envelop the subject, this 
might perhaps be said at present. The Florentine 
dialect has its peculiarities, which distinguish it 
from the general Italian language, though these are 
seldom discerned by foreigners, nor always by na- 
tives, with whom Tuscan is the proper denomina- 
tion of their national tongue. 

+ Tiraboschi, t. iv., p. 309—377. Ginguen6, vol. 
1., c. 6. The style of the Vila Nuova of Dante, 
written soon after the deatli of his Beatrice, which 
happened in 1290, is hardly distinguishable by a 
foreigner from that of Machiavel or Castiglione. 
Yet so recent was the adoption of this language, 
that the celebrated master of Dante, Brunetto La- 
tini, had written his Tesoro in French ; am', gives. 



But at the beginning of the next age 
arose a much greater genius, the 
true father of Itahan poetry, and ^" *" 
the first name in the literature of the 
middle ages. This was Dante, or Du- 
rante Alighieri, born in 1265, of a re- 
spectable iamily at Florence. Attached 
to the Guelf party, which had then ob- 
tained a final ascendency over its rival, 
he might justly promise himself tlie nat- 
ural reward of talents under a free gov- 
ernment, public trust, and the esteem of 
his compatriots. But the Guelfs unhap- 
pily were split into two factions, the Bi- 
anchi and the Neri, with the former of 
whom, and, as it proved, the unsuccess- 
ful side, Dante was connected. In 1300 
he filled the ofiice of one of the Priori, or 
chief magistrates at Florence ; and hav- 
ing manifested in this, as was alleged, 
some partiaUty towards the Bianchi, a 
sentence of proscription passed against 
him about two years afterward, when it 
became the turn of the opposite faction 
to triumph. Banished from his country, 
and baffled in several efforts of his 
friends to restore their fortunes, he had 
no resource but at the courts of the Sea- 
las at Verona, and other Italian princes, 
attaching himself in adversity to the Im- 
perial interests, and tasting in his own 
language the bitterness of another's 
bread.* In this state of exile he finish- 
ed, if he did not commence, his great 
poem, the Divine Comedy; a representa- 
tion of the three kingdoms of futurity. 
Hell, Purgatory, and Paradise, divided 
into one hundred cantos, and containing 
about 14,000 lines. He died at Ravenna 
in 1321. 

Dante is among the very tew who 
have created the national poetry of their 
country. For notwithstanding the pol- 
ished elegance of some earher Italian 
verse, it had been confined to amorous 
sentiments ; and it was yet to be seen 
that the language could sustain for a 

as a reason for it, that it was a more agreeable and 
usual language than his own. Et se aucuns de- 
mandoit pourquoi chis livre est ecris en romans, 
selon la raison de France, pour chose que nous 
sommes ytalien, je diroie que ch'est pour chose 
que nous sommes en France : I'autre pour chose 
que la parleure en est plus delitahle et plus commune a 
toutes gens. There is said to be a manuscript his- 
tory of Venice down to 1275, in the Florentine li- 
brary, written in French by Martin de Canale, who 
says that he has chosen that language, parceque 
la langue franceise cort parmi le monde, et est la 
plus delitable a lire et a oir que nulle autre.— Gin- 
guene, vol. i., p- 384. 

* Tu proverai ci (says Cacciaguida ta tuni)i 
come sJi di sale 
n pane altrui, e come i dure calle 
11 scendere e '1 salir per altrui scale. 
I Paradis., cant. 16. 



536 



EUROPE DURING THE MIDDLE AGES. 



[Chav. IX. 



greater length than any existing poem 
except the Iliad, the varied style of nar- 
ration, reasoning, and ornament. Of all 
writers he is the. most unquestionably 
original. Virgil was indeed his inspiring 
genius, as he declares himself, and as 
may sometimes be perceived in his dic- 
tion ; but his tone is so peculiar and char- 
acteristic, that few readers would be wil- 
ling at first to acknowledge any resem- 
blance. He possessed, in an extraordi- 
nary degree, a command of language, the 
abuse of which led to his obscurity and 
licentious innovations. No poet ever ex- 
celled him in conciseness, and in the rare 
talent of finishing his pictures by a few 
bold touches ; the merit of Pindar in his 
better hours. How prolix would the sto- 
ries of Francesca or of Ugolino have be- 
come in the hands of Ariosto, or of Tas- 
so, or of Ovid, or of Spenser ! This ex- 
cellence indeed is most striking in the 
first part of his poem. Having formed 
his plan so as to give an equal length to 
the three regions of his spiritual world, 
he found himself unable to vary the ima- 
ges of hope or beatitude, and the Para- 
dise is a continual accumulation of de- 
scriptions, separately beautiful, but uni- 
form and tedious. Though images deri- 
ved from light and music are the most 
pleasing, and can be borne longer in poe- 
try than any others, their sweetness palls 
upon the sense by frequent repetition, 
and we require the intermixture of sharp- 
er flavours. Yet there are detached pas- 
sages of great excellence in this third 
part of Dante's poem ; and even in the 
long theological discussions which occu- 
py the greater proportion of its thirty- 
three cantos, it is impossible not to ad- 
mire the enunciation of abstract positions 
with remarkable energy, conciseness, and 
sometimes perspicuity. The twelve first 
cantos of the Purgatory are an almost 
continual flow of soft and brilliant poe- 
try. The seven last are also very splen- 
did, but there is some heaviness in the 
intermediate parts. Fame has justly 
given the preference to the Inferno, 
which displays throughout a more vigor- 
ou^s and masterly conception ; but the 
mind of Dante cannot be thoroughly ap- 
preciated without a perusal of his entire 
poem. 

The most forced and unnatural turns, 
the most barbarous licenses of idiom, are 
found in this poet, whose power of ex- 
pression is, at other times, so peculiarly 
happy. His style is indeed generally 
free from those conceits of thought 
which discredited the other poets of his 
country ; but no sense is too remote for 



a word which he finds convenient for his 
measure or his rhyme. It seems indeed 
as if he never altered a line on accf)unt 
of the necessity of rhyme, but forced an- 
other or perhaps a third into company 
with it. P'or many of his faults no suffi- 
cient excuse can be made. But it is can- 
did to remember, that Dante, writing al- 
most in the infancy of a language which 
he contributed to create, was not to an- 
ticipate that words, which he borrowed 
from the Latin and from the provincial 
dialects, would by accident, or through , 
the timidity of later writers, lose their 
place in the classical idiom of Italy. If 
Petrarch, Bembo, and a few more, had 
not aimed rather at purity than copious- 
ness, the phrases which now appear bar- 
barous, and are at least obsolete, might 
have been fixed by use in poetical lan- 
guage. 

The great characteristic excellence of 
Dante is elevation of sentiment, to which 
his compressed diction and the empiiatic 
cadences of his measure admirably cor- 
respond. We read him, not as an amu- 
sing poet, but as a master of moral wis- 
dom, with reverence and awe. Fresh 
from the deep and serious, though some- 
what barren studies of philosophy, and 
schooled in the severer discipline of ex- 
perience, he has made of his poem a mir- 
ror of his mind and life, the register of 
his solicitudes and sorrows, and of the 
speculations in which he sought to es- 
cape their recollection. The banished 
magistrate ,of Florence, the disciple of 
Brunetto Latini, the statesman accus- 
tomed to trace tlie varying fluctuations 
of Italian faction, is for ever before our 
eyes. For this reason, even the prodi- 
gal display of erudition, which in an epic 
poem would be entirely misplaced, in- 
creases the respect we feel for the poet, 
though it does not tend to the reader's 
gratification. Except Milton, he is much 
the most learned of all the great poets, 
and, relatively to his age, far more learn- 
ed than Milton. In one so highly en- 
dowed by nature, and so consummate by 
instruction, we may well sympathize 
with a resentment which exile and pov- 
erty rendered perpetually fresh. Tlie 
heart of Dante was naturally sensible, and 
even tender; his poetry is full of simple 
comparisons from rural life ; and the sin- 
cerity of his early passion for Beatrice 
pierces through the vale of allegory 
winch surrounds her. But the memory 
of his injuries pursues him into the im- 
mensity of eternal light ;* and, in the com- 



* Paradiso, cant. 16. 



Part II.] 



STATE OF SOCIETY. 



687 



pany of saints and angels, his unforgiving 
spirit darkens at the name of Florence. 

This great poem was received in Italy 
with that enthusiastic admiration which 
attaches itself to works of genius only in 
ages too rude to listen to the envy of 
competitors or the fastidiousness of crit- 
ics. Almost every library in that coun- 
tiy contains manuscript copies of the Di- 
vine Comedy, and an account of those 
who have abridged or commented upon 
it would swell to a volume. It was thrice 
printed in the year 1472, and at least nine 
times within the fifteenth century. The 
city of Florence, in 1373, with a magna- 
nimity which almost redeems her origi- 
nal injustice, appointed a public professor 
to read lectures upon Dante ; and it was 
hardly less honourable to the poet's mem- 
ory, that the first person selected for this 
office was Boccaccio. The universities 
of Pisa and Piacenza imitated this exam- 
ple ; but it is probable that Dante's ab- 
struse philosophy was often more re- 
garded in their chairs than his higher ex- 
cellences.* Italy indeed, and all Europe, 
had reason to be proud of such a master. 
Since Claudian, there had been seen for 
nine hundred years no considerable body 
of poetry, except the Spanish poem of 
the Cid, of which no one had heard be- 
yond the peninsula, that could be said to 
pass mediocrity ; and we must go much 
farther back than- Claudian to find any 
one capable of being compared with 
Dante. His appearance made an epoch 
in the intellectual history of modern n-a- 
tions, and banished the discouraging sus- 
picion which long ages of lethargy tend- 
ed to excite, that nature had exhausted 
her fertility in the great poets of Greece 
and Rome. It was as if, at some of the 
ancient games, a stranger had appeared 
upon the plain, and thrown his quoit 
among the marks of former casts, which 
tradition had ascribed to the demigods. 
But the admiration of Dante, though it 
gave a general impulse to the humaii 
mind, did not produce imitators. I am 
unaware at least of any writer, in what- 
ever language, who can be said to have 
followed the steps of Dante ; I mean not 
so much in his subject as in the charac- 
ter of his genius and style. His orbit is 
still air his own, and the track of his 
wheels can never be confounded with 
that of a rival.f 

* Velli, Vita di Dante. Tiraboschi. 

t The source from which Dante derived the 
scheme and general idea of his poem has been a 
subject of inquiry in Italy. To his original mind 
one might have thought the sixth iEneid would 
have sufficed. But besides several legendary vis- 



In the same year that Dante was ex- 
pelled from Florence, a notary, 
by name Petracco, was involved ^*'"'''''* 
in a similar banishment. Retired to 
Arezzo, he there became the father of 
Francis Petrarch. This great man shared 
of course, during his early years, in the 
adverse fortune of his family, which he 
was invincibly reluctant to restore, ac- 
cording to his father's wish, by the pro- 
fession of jurisprudence. The strong 
bias of nature determined him to polite 
letters and poetry. These are seldom 
the fountains of wealth ; yet they would 
perhaps have been such to Petrarch, if 
his temper could have borne the sacrifice 
of liberty for any worldly acquisitions. 
At the city of Avignon, where his parents 
had latterly resided, his graceful appear- 
ance and the reputation of his talents at- 
tracted one of the Colonna family, then 
bishop of Lombes in Gascony. In him, 
and in other members of that great 
house, never so illustrious as in the f^our- 
teenth century, he experienced the union 
of patronage and friendship. This, how- 
ever, was not confined to the Colonnas. 
Unlike Dante, no poet was ever so liber- 
ally and sincerely encouraged by the 
great ; nor did any, perhaps, ever carry 
to that perilous intercourse a spirit more 
irritably independent, or more free from 
interested adulation. He praised his 
friends lavishly, because he loved them 
ardently ; but his temper was easily sus- 
ceptible of offence, and there must have 
been much to tolerate in that restlessness 
and jealousy of reputation, which is per- 
haps the inevitable failing of a poet.* 



ions of the 12th and l.'^th centuries, it seems prob- 
able that he derived hints from the Tesoretto of his 
master in philosophical studies, Brunette Latini. — 
Ginguene, t. ii., p. 8. 

* There is an unpleasing proof of this quality in 
a letter to Boccaccio on Dante, whose merit he 
rather disingenuously extenuates ; and whose pop- 
ularity evidently stung him to the quick. — De Sade, 
t. iii., p. 512. Yet we judge so ill of ourselves, that 
Petrarch chose envy as the vice from which of all 
others he was most free. In his dialogue with St. 
Augustin,hesays; Quicquid libuerit.dicito; modo 
me non accuses invidise. Aug. Utinam non tibi 
magis superbia quam invidia nocuisset: nam hoc 
crimine, me judice, liber es. — De Contemptu Mun- 
di, edit. 1581, p. 342. 

I have read in some modern book, but know not 
where to seek the passage, that Petrarch did not 
intend to allude to Dante in the letter to Boccaccio 
mentioned above, but rather to Zanobi Strata, a 
contemporary Florentine poet, whom, however for- 
gotten at present, the bad taste of a party in criti- 
cism preferred to himself— Matteo Villani men 
tions them together as the two great ornaments of 
his age. This conjecture seems probable, for some 
expressions are not in the least applicable to Dante. 
But, whichever was intended, the letter equallj 
shows the irritab'.e humour of Petrarch. 



538 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



But every thing was forgiven to a man 
■vvho was the acknowledged boast of his 
age and country. Clement VI. conferred 
one or two sinecure benefices upon Pe- 
trarch, and would probably have raised 
him to a bishopric, if he had chosen to 
adopt the ecclesiastical profession. But 
he never took orders, the clerical tonsure 
being a sufficient qualification for holding 
canonries. The same pope even afforded 
him the post of apostolical secretary, and 
this was repeated by Innocent VI. I 
know not whether we should ascribe to 
magnanimity, or to a politic motive, the 
behaviour of Clement VI. towards Pe- 
trarch, who had pursued a course as vex- 
atious as possible to the Holy See. For 
not only he made the residence of the 
supreme pontitTs at Avignon, and the 
vices of their court, the topic of invec- 
tives, too well founded to be despised, 
but he had ostentatiously put himself for- 
ward as the supporter of Nicola di Rien- 
zi in a project which could evidently have 
no other aim than to wrest the city of 
Rome from the temporal sovereignty of 
Its bishop. Nor was the friendship and 
society of Petrarch less courted by the 
most respectable Italian princes ; by Rob- 
ert, king of Naples, by the Visconti, the 
Correggi of Parma, the famous doge of 
"Venice, Andrew Dandolo, and the Carrara 
family of Padua, under whose protection 
he .spent the latter years of his life. Sto- 
ries are related of the respect shown to 
him by men in humbler stations which 
are perhaps still more satisfactory.* But 
the most conspicuous testimony of pub- 
lic esteem was bestowed by the city of 
Rome, in his solemn coronation as lau- 
reate poet, in the capitol. This ceremony 
took place in 1341 ; and it is remarkable 
that Petrarch had at that time composed 
no works w^hich could, in our estimation, 
give him pretensions to so singular an 
honour. 

The moral character of Petrarch was 
formed of dispositions peculiarly calcula- 
ted for a poet. An enthusiast in the 
emotions of love and friendship, of glo- 

* A goldsmith of Bergamo, by name Henry Ca- 
pra, smitten with an enthusiastic love of letters 
and of Petrarch, earnestly requested the honour of 
a visit from the poet. The house of this good 
tradesman was full of representations of his person, 
and of inscriptions with his name and arms. No 
expense had been spared in copying all his v^'orks 
as (hey appeared. He was received by Capra with 
a princely magnificence ; lodged in a chamber 
hung with purple, and a splendid bed on which no 
one before or after him was permitted to sleep. 
Goldsmiths, as we may judge by this instance, 
were opulent persons ; yet the friends of Petrarch 
dissuaded him from this visit, as derogatory to his 
own elevated station. — De Sade, t. iii., p. 496. 



ry, of patriotism, of religion, he gave the 
rein to all their impulses ; and there is 
not perhaps a page in his Italian writing 
which does not bear the trace of one or 
other of these affections. By far the 
most predominant, and that which has 
given the greatest celebrity to his name, 
is his passion for Laura. Twenty years 
of unrequited and almost unaspiring love 
were lightened by song; and the attach- 
ment, which, having long survived the 
beauty of its object,* seems to have at 
one time nearly passed from the heart to 
the fancy, was changed to an intenser 
feeling, and to a sort of celestial adora- 
tion, by her death. Laura, before the 
time of Petrarch's first accidental meet- 
ing with her, was united in marriage with 
another; a fact which, besides some 
more particular evidence, appears to me 
deducible from the whole tenour of his 
poetry. t Such a passion is undoubtedly 
not capable of a moral defence ; nor 



* See the beautiful sonnet, Erano i capei d' oro 
all' aura sparsi. In a famous passage of his Con- 
fessions, he says ; Corpus illud egregium morbis et 
crebris partubus e.^haustum, multuin pristini vigo- 
ris amisit. Those who maintain the virginity of 
Laura are forced to read pcrturbationibus instead of 
partubus. Two manuscripts in the royal library at 
Pans have the contraction ptbus, which leaves the 
matter open to controversy. De Sade contends 
that " crebris" is less applicable to " perturbationi- 
bus" than to " partubus." I do not know that 
there is much in this ; but I am clear that corpus 
exhaustum partubus is much the more elegant 
Latin expression of the two. 

t The Abbe de Sade, in those copious memoirs 
of the life of Petrarch, which illustrate in an agree- 
able though rather prolix manner the civil and lite- 
rary history of Provence and Italy in the fourteenth 
century, endeavoured to establisli his own descent 
from Laura, as the wife of Hugues de Sade, and 
born in the family de Noves. This hypothesis has 
since been received with general acquiescence by 
literary men ; and Tiraboschi in particular, whose 
talent lay in these petty biographical researches, 
and who had a prejudice against every thing that 
came from France, seems to consider it as deci- 
sively proved. But it has been called in question 
in a modern publication by the late Lord Wood- 
houselee. — (Ussay on the Life and Character of 
Petrarch, 1810.) I shall not offer any opinion as 
to the identity of Petrarch's mistress with Laura 
de Sade ; but the main position of Lord W.'s essay, 
that Laura was an unmarried woman, and the ob- 
ject of an honourable attachment in her lover, 
seems irreconcilable with the evidence that nis 
writings supply. I. There is no passage in Pe 
trarch, whether of poetry or prose, that alludes to 
the virgin character of Laura, or gives her the usu- 
al appellations of unmarried women, puella in 
Latin, or donzella in Italian; even in the Trionfo 
della Castita, where so obvious an opportunity oc- 
curred. Yet this was naturally to be expected 
from so ethereal an imagination as that of Petrarch, 
always inclined to invest her with the halo of ce- 
lestial purity. We know how Milton took hold 
of the mystical notions of virginity ; notions 
more congenial to the reUgion of Petrarch than his 



Part II] 



STATE OF SOCIETY. 



53g 



would I seek its palliation so much in the 
prevalent manners of his age, by which, 
however, the conduct of even good men 
is generally not a little influenced, as in 
the infirmity of Petrarch's character, 
which induced him both to obey and to 
justify the emotions of his heart. The 
lady loo, whose virtue and prudence we 
are not to question, seems to have tem- 
pered the light and shadow of her coun- 
tenance so as to preserve her admirer 
from despair, and consequently to pro- 
long his sufferings and servitude. 

The general excellences of Petrarch 
are his command over the music of his 
native language, his correctness of style, 
scarcely two or three words that he has 
used having been rejected by later wri- 
ters, his exquisite elegance of diction, 
improved by the perpetual study of Vir- 
gil ; but, far above all, that tone of pure 
and melancholy sentiment, which has 
something in it unearthly, and forms a 
strong contrast to the amatory poems of 
antiquity. Most of these are either li- 
centious or uninteresting ; and those of 
Catullus, a man endowed by nature with 
deep and serious sensibility, and a poet, 
in my opinion, of greater and more va- 

Quod tibi perpetuus pudor, et sine labe juventas 
Pura fuit, quod nulla tori libata voluptas, 
En etiam tibi virginei senantur honores. 

Epitaphium Damonis. 
2. The coldness of Laura towards so passionate 
and deserving a lover, if no insurmountable obsta- 
cle intervened during his twenty years of devotion, 
would be at least a mark that his attachment was 
misplaced, and show him in rat!ier a ridiculous 
light. It is not surprising, that persons believing 
Laura to be unmarried, as seems to have been the 
case with the Italian commentators, should have 
thought his passion affected and little more than 
poetical. But, upon the contrary supposition, a 
thread runs through the whole of his poetry, and 
gives it consistency. A love on the one side, in- 
stantaneously conceived, and retained by the sus- 
ceptibility of a tender heart and ardent fancy; 
nourished by slight encouragement, and seldom 
presuming to hope for more ; a mixture of prudence 
and coquetry on the other, kept within bounds ei- 
ther by virtue or by the want of mutual attachment, 
yet not dissatisfied with fame more brilliant and 
flattery more refined than had ever before been the 
lot of woman— these are surely pretty natural cir- 
cumstances, and such as do not render the story 
less intelligible. Unquestionably, such a passion is 
not innocent. But Lord Woodhouselee, who is so 
much scandalized at it, knew little, one would 
think, of the fourteenth century. His standard is 
taken not from Avignon, but from Edinburgh, a 
much better place, no doubt, and where the moral 
barometer stands at a very different altitude. In 
one passage, p. 188, he carries his strictness to an 
excess of prudery. From all we know of the age 
of Petrarch, the only matter of astonishment is the 
persevering virtue of Laura. The troubadours 
boast of much better success with Proven(;al ladies. 
3. But the following passage from Petrarch's dia- 
logues with St. Augustin, the work, as is well 



ried genius than Petrarch, are contami- 
nated, above all the rest, with the most 
degrading grossness. Of this there is 
not a single instance in the poet of Vau- 
cluse ; and his strains, diffused and ad- 
mired as they have been, may have con- 
ferred a benefit that criticism cannot es- 
timate, in giving elevation and refinement 
to the imaginations of youth. The great 
defect of Petrarch was his want of strong 
original conception, which prevented him 
from throwing off the affected and over- 
strained manner of the Provencjal trouba- 
dours, and of the earlier Italian poets. 
Among his poems, the Triumphs are per- 
haps superior to the Odes, as the latter 
are to the Sonnets ; and of the latter, 
those written subsequently to the death 
of Laura are in general the best. But 
that constrained and laborious measure 
cannot equal the graceful flow of the can- 
zone, or the vigorous compression of the 
terza rima. The Triumphs have also a 
claim to superiority, as the only poetical 
composition of Petrarch that extends to 
any considerable length. They are in 
some degree, perhaps, an imitation of the 
dramatic Mysteries, and form at least the 
earliest specimens of a kind of poetry 
not uncommon in later times, wherein 



known, where he most unbosoms himself, will 
leave no doubt, I think, that his passion could not 
have been gratified consistently with honour. At 
mulier ista Celebris, quam tibi certissimam ducem 
fingis, ad superoscur non haesitantem trepidumque 
direxerit, et quod caecis fieri solet, manu apprehen- 
sum non tenuit, quo et gradiendum foret admonu- 
it ? — Pete. Fecit hoc ilia quantum potuit. Quid 
enim aliud egit, cum nuUis mota precibus, nnllis 
victa blanditiis, muliebrem tenuit decorem, et ad- 
versus suam semel et meam statem, adversu3 
multa et varia, quae flectere adamantium spiritum 
debuissent, inexpugnabilis et firma permansit? 
Profecto animus iste fcemineus quid virum decuit 
admonebat, prsestabatque ne in sectando pudicitise 
studio, ut verbis utar Senecse, aut exemplum aut 
convitium deesset ; postremo cum lorifragum ac 
praecipitem videret, deserere maluit potius quam 
sequi. — August. Turpe igitur aliquid interduni 
voluisti, quod supra negaveras. At iste vulgains 
amantium, vel, ut dicam verius, amentium furor 
est, ut omnibus merito dici possit: voJo nolo, nolo 
volo. Vobis ipsis quid velitis, aut nolitis, ignotum 
est. — Pet. Invitus in laqueum offendi. Si quid ta- 
men dim aliter forte voluissem, .imor aetasque coe- 
gerunt ; nunc quid velim et cupiam scio, firmavique 
jam tandem animum labentem; contra autem ilia 
propositi tenax et semper una permansit, quare 
constantiam foemineam quo magis intelligo, magis 
admiror : idque sibi consilium fuisse, si unquam 
debuit, gaudeo nunc et gratias ago. — Aug. Seniel 
fallenti, non facile rursus fides habenda est : ta 
prius mores atque habitum, vitamque mutavisti. 
quamanimum mutassepersuadeas; mitigatur forte 
SI tuus leniturque ignis, estmctus non est. Tu 
veroquitantumdilectioni tribuis,nonanimadvertis, 
illam absolvendo, quantum te ipse condemnas ; 
illam fateri libet fuisse sanctissimam, dum te insa- 
num scelestumque fateare. — De Contemptu Miindi, 
Dialog. 3, p. 367, edit. 1581. 



540 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX, 



real and allegorical personages are in- 
termingled in a masque or scenic repre- 
sentation. 

None of the principal modern lan- 
Ensiish guages was so late in its forma- 
laiiguage. tion, or in its application to the 
purposes of literature, as the English. 
This arose, as is well known, out of the 
Saxon branch of the great Teutonic 
stock, spoken in England till after the 
conquest. From this mother dialect, our 
English differs less in respect of etymolo- 
gy, than of syntax, idiom, and flexion. 
In so gradual a transition as probably 
took place, and one so sparingly marked 
by any existing evidence, we cannot well 
assign a definite origin to our present 
language. The question of identity is 
almost as pei'plexing in languages as in 
individuals. But, in the reign of Henry 
II., aversion of Wace's poem of Brut, by 
one Layamon, a priest of Ernly upon 
Severn, exhibits, as it were, the chrysalis 
of the English language, in which he 
can as little be said to have written, as 
Early in Anglo-Saxon.* Very soon af- 
■writers. terward, the new formation was 
better developed ; and some metrical 
pieces, referred by critics to the earlier 
part of the thirteenth century, differ but 
little from our legitimate grammar.! 
About the beginning of Edward I.'s 
reign, Robert, a monk of Glocester, com- 
posed a metrical chronicle from the his- 
tory of Geoffrey of Monmouth, which he 
continued to his own time. This work, 
with a similar chronicle of Robert Man- 
ning, a monk of Brunne (Bourne) in Lin- 
colnshire, nearly thirty years later, stand 
at the head of our English poetry. The 
romance of Sir Tristrem, ascribed to 
Thomas of Erceldoune, surnamed the 
Rhymer, a Scottish minstrel, has recent- 
ly laid claim to somewhat higher antiqui- 
ty. In the fourteenth century, a great 
number of metrical romances were trans- 
lated from the French. It requires no 
small portion of indulgence to speak fa- 
vourably of any of these early English 
productions. A poetical line may no 
doubt occasionally be found ; but in gen- 
eral the narration is as heavy and pro- 
lix as the versification is unmusical. J 

* A sufficient extract from this work of Layamon 
has been published by Mr. Ellis, in his specimens 
of early English poetry, vol. i., p. 61. It contains, 
he observes, no word which we are under the ne- 
cessity of ascribing to a French origin. 

t Warton's Hist, of English Poetry. Ellis's 
Specimens. 

t Warton printed copious extracts from some of 
these. Ritson gave several of them entire to the 
press. And Mr. Ellis has adopted the only plan 
which could render them palatable, by inlermin- 



The first English writer who can be read 
with approbation is WilUam Langland, 
the author of Piers Plowman's Vision, a 
severe satire upon the clergy. Though 
his measure is more uncouth than that 
of his predecessors, there is real energy 
in his conceptions which he caught not 
from the chimeras of knight-errantry, 
but the actual manners and opinions of 
his time. 

The very slow progress of the Eng- 
lisli language, as an instrument cause of 
of literature, is chiefly to be its slow 
ascribed to the effects of the P'^s^ess. 
Norman conquest, in degrading the na- 
tive inhabitants, and transferring all 
power and riches to foreigners. The 
barons, without perhaps one exception, 
and a large proportion of the gentry, 
were of French descent, and preserved 
among themselves the speech of their 
fathers. This continued much longer 
than we should naturally have expected ; 
even after the loss of Normandy had 
snapped the thread of French connex- 
ions, and they began to pride themselves 
in the name of Englishmen, and in the 
inheritance of traditionary English priv- 
ileges. Robert of Glocester has a re- 
markable passage, which proves that, in 
his time, somewhere about 1270, the su- 
perior ranks continued to use the French 
language.* Ralph Higden, about the 
early part of Edward III.'s reign, though 
his expressions do not go the same 
length, asserts, that " gentlemen's chil- 
dren are taught to speak French from 
the time they are rocked in their cradle ; 
and uplandish (country) or inferior men 
will liken themselves to gentlemen, and 
learn with great business for to speak 
French, for to be the more told of." 
Notwithstanding, however, this predom- 
inance of French among the higher 
class, I do not think that some modern 
critics are warranted in concluding that 
they Avere in general ignorant of the 
English tongue. Men living upon their 
estates among their tenantry, whom they 
welcomed in their halls, and whose as- 
sistance they were perpetually needing 
in war and civil frays, would hardly have 
permitted such a barrier to obstruct 
their intercourse. For we cannot, at 



gling short passages, where the original is rather 
above its usual mediocrity, with his own lively 
analysis. 

* The evidences of this general employment 
and gradual disuse of French in conversation and 
writing are collected by Tyrwhitt, in a dissertation 
on the ancient English language, prefixed to the 
fourth volume of his edition of Chaucer's Canter- 
bury Tales ; and by Ritson, in the preface to his 
Metrical Romances, vol. i., p. 70. 



Part II.] 



STATE OF SOCIETY. 



S41 



the utmost, presume that French was so 
well known to the English commonalty 
in the thirteenth century, as English is 
at present to the same class in Wales 
and the Scottish Highlands. It may be 
remarked, also, that the institution of 
trial by ,juiy must have rendered a 
knowledge of English almost indispen- 
sable to those who administered justice. 
There is a proclamation of Edward I. 
in Rymer, where he endeavours to ex- 
cite his subjects against the King of 
France by imputing to him the intention 
of conquering the country, and abolish- 
ing the English language (linguam de- 
lere anglicanam), and this is frequently 
repeated in the proclamations of Edward 
III.* In his time, or perhaps a little be- 
fore, the native language had become 
more familiar than French in common 
use, even with the court and nobility. 
Hence the numerous translations of met- 
rical romances, which are chiefly refer- 
red to his reign. An important change 
was effected in 136-2, by a statute, which 
enacts that all pleas in courts of justice 
shall be pleaded, debated, and judged in 
English. But Latin was, by this act, to 
be employed in drawing the record ; for 
there seems to have still continued a 
sort of prejudice against the use of Eng- 
lish as a written language. The earliest 
English instrument known to exist is 
said to bear the date of 1343. f And 
there are not more than three or four 
entries in our own tongue upon the rolls 
of parliament before the reign of Henry 
VI., after whose accession its use be- 
comes very common. Sir John Mande- 
vile, about 1350, may pass for the father 
of English prose, no original work being 
so ancient as his travels. But the trans- 
lation of the Bible and other writings by 
Wicliffe nearly thirty years afterward, 
taught us the copiousness and energy of 
which our native dialect was capable ; 
and it was employed in the fifteenth cen- 
tury by two writers of distinguished 
merit, Bishop Peacock and Sir John 
Fortescue. 

But the principal ornament of our Eng- 
lish literature was Geoffrey Chau- 
CHaucer. ^^^^ ^^^^^^ ^^-^^^ j^^^^^^ ^^^ p^_ 

trarch, fills up the triumvirate of great 
poets in the middle ages. Chaucer was 
born in 1328, and his life extended to the 
last year of the fourteenth century. That 
rude and ignorant generation was not 
likely to feel the admiration of native ge- 
nius as warmly as the compatriots of Pe- 



* T. v., p. 490; t. vi., p. 642, et alibi. 
+ Ritson, p. 80. There is one in Rymer of the 
year 1385. 



trarch ; but he enjoyed the favour of Ed- 
ward III., and, still more conspicuously, 
of John, duke of Lancaster ; his fortunes 
were far more prosperous than have 
usually been the lot of poets ; and a rep- 
utation was established beyond competi- 
tion in his hfetime, from which no suc- 
ceeding generation has withheld its sanc- 
tion. I cannot, in my own taste, go 
completely along with the eulogies that 
some have bestowed upon Chaucer, who 
seems to me to have wanted grandeur, 
where he is original, both in conception 
and in language. But in vivacity of im- 
agination and ease of expression, he is 
above all poets of the middle time, and 
comparable perhaps to the greatest of 
those who have followed. He invented, 
or rather introduced from France, and 
employed with facility the regular iambic 
couplet ; and though it was not to be ex- 
pected that he should perceive the capa- 
cities latent in that measure, his versifi- 
cation, to which he accommodated a very 
licentious and arbitrary pronunciation, is 
uniform and harmonious.* It is chiefly, 
indeed, as a comic poet, and a minute 
observer of manners and circumstances, 
that Chaucer excels. In serious and 
moral poetry he is frequently languid and 
diffuse ; but he springs like Antaeus from 
the earth, when his subject changes to 
coarse satire or merry narrative. Among 
his more elevated compositions, the 
Knight's Tale is abundantly sufficient to 
immortalize Chaucer, since it would be 
difficult to find anywhere a story better 
conducted, or told with more animation 
and strength of fancy. The second place 
may be given to his Troilus and Cres- 
eide, a beautiful and interesting poem, 
though enfeebled by expansion. But 
perhaps the most eminent, or at any rate 
the most characteristic, testimony to his 
genius will be found in the prologue to 
his Canterbury Tales ; a work entirely 
and exclusively his own, which can sel- 
dom be said of his poetry, and the vivid 
delineations of which perhaps very few 
writers but Shakspeare could have equal- 
led. As the first original English poet, 
if v/e except Langland, as the inventor 
of our most approved measure, as an im- 
prover, though with too much innovation, 
of our language, and as a faithful witness 
to the manners of his age, Chaucer would 
deserve our reverence, if he had not also 

* See Tyrwhitt's essay on the language and ver- 
sification of Chaucer, in the fourth volume of his 
edition of the Canterbury Tales. The opinion of 
this eminent critic has lately been controverted by 
Dr. Nott, who maintains the versification of Chau- 
cer to have been wholly founded on accentual and 
not syllabic regularity. 



642 



EUROPE DURING THE MIDDLE AGES, 



[Chap. IX. 



intrinsic claims for . excellences which 
do not depend upon any collateral con- 
siderations. 

The last circumstance which I shall 
Revival of mention as having contributed to 
ancient restore society from the intellect- 
learning y^j degradation into which it had 
fallen during the dark ages, is the revival 
of classical learning. The Latin language 
indeed, in which all legal instruments 
were drawn up, and of which all ecclesi- 
astics availed themselves in their episto- 
lary intercourse, as well as in their more 
solemn proceedings, had never ceased to 
be familiar. Though many solecisms 
and barbarous words occur in the wri- 
tings of what were called learned men, 
they possessed a fluency of expression 
in Latin which does not often occur at 
present. During the dark ages, howev- 
er, properly so called, or the period from 
the sixth to the eleventh century, it is 
unusual to meet with quotations, except 
from the Vulgate or from theological 
writers. The study of Rome's greatest 
authors, especially her poets, was almost 
forbidden. But a change took place in 
in the the course of the twelfth cen- 

tweiftb cen- tury. The polite literature, as 
'"■■y- well as the abstruser science of 

antiquity, became the subject of cultiva- 
tion. Several writers of that age, in dif- 
ferent parts of Europe, are distinguished 
more or less for elegance, though not ab- 
solute purity, of Latin style ; and for 
their acquaintance with those ancients 
who are its principal models. Such 
were John of Salisbury, the acute and 
learned author of the Policraticus, Will- 
iam of ]Malmsbui-y, Giraldus Cambrensis, 
Roger Hoveden, in England ; and in for- 
eign countries, Otho of Frisingen, Saxo 
Grammaticus, and the best perhaps of all 
I have named as to style, Falcandus, the 
historian of Sicily. In these we meet 
with frequent quotations from Livy, Ci- 
cero, Phny, and other considerable wri- 
ters of antiquity. The poets were now 
admired, and even imitated. All metri- 
cal Latin before the latter part of the 
twelfth century, so far as I have seen, is 
extremely bad ; but at this time, and ear- 
ly in the succeeding age, there appeared 
several versifiers, who aspired to the re- 
nown of following the steps of Virgil and 
Statius in epic poetry. Joseph Iscanus, 
an Englishman, seems to have been the 
earliest of these ; his poem on the Tro- 
jan w^ar, containing an addres to Henry 
IL He wrote another, entitled Antiochus, 
on the third crusade, most of which has 
perished. The wars of Frederick Barba- 
rossa were celebrated by Gunther in his 



Ligurinus ; and not long afterward, Guil- 
lelmus Brito wrote the Philippis, in hon- 
our of Philip Augustus, and Walter de 
Chatillon the Alexandreis, taken from 
the popular romance of Alexander. None 
of these poems, I believe, have much in- 
trinsic merit ; but their existence is a 
proof of taste that could relish, though 
not of genius that could emulate antiqui- 
ty.* 

In the thirteenth century there seems 
to have been some decline of classical 
literature, in consequence prob- much more 
ably of the scholastic philoso- imheiour- 
phy, Avhich was then in its great- '*'^""'- 
est vigour ; at least we do not find so 
many good writers as in the preceding 
age. But about the middle of the four- 
teenth, or perhaps a little sooner, an ar- 
dent zeal for the restoration of ancient 
learning began to display itself. The 
copying of books, for some ages slowly 
and sparingly performed in monasteries, 
had already become a branch of trade ;f 
and their price was consequently invention 
reduced. Tiraboschi denies that or linen 
the invention of making paper P"''®''' 
from linen rags is older than the middle 

* Warton's Hist, of English Poetry, vol. i., Dis 
sertatioii II. Roquefort, Etat de la Poesie Fran- 
(jaise du douzieme Sifecle, p. 18. The following 
lines from the beginning of the eighth book of the 
Philippis seem a fair, or rather a favourable speci- 
men of these epics. But I am very superficially 
acquainted with any of them. 

Solverat interea zephyris melioribus annum 
Frigore depulso veris tepor, et renovari 
Coeperat et viridi gremio juvenescere tellus ; 
Cum Ilea laeta Jovis rideret ad oscula mater 
Cum jam post tergum Phryxi vectore relicto 
Solis Agenorei premeret rota terga juvenci. 
The tragedy of Eccerinus (Eccelin da Romano), 
by Albertuius Mussatus, a Paduan, and author of 
a respectable history, deserves some attention, as 
the first attempt to revive the regular tragedy. It 
was written soon after 1300. The language by no 
means wants animation, notwithstanding an un- 
skilful conduct of the fable. The Eccerinus is 
printed in the tenth volume of Muratori'scollection. 
t Booksellers appear in the latter part of the 
twelfth century. Peter of Blois mentions a law- 
book which he had procured a quodam publico 
mangone librorum. — Hist. Litteraire de la France, 
t. ix., p. 84. In the thirteenth century there were 
many copyists by occupation in the Italian univer- 
sities. — Tiraboschi, t. iv., p. 72. The number of 
these at Milan before the end of that age is said to 
have been fifty, ibid. But a very small proportion 
of their labour could have been devoted to purpo- 
ses merely literary. By a variety of ordinances, 
the first of which bears date in 1275, the booksel- 
lers of Paris were subjected to the control of the 
university. — Crevier, t. ii., p. 67, 286. The pretext 
of this was, lest erroneous copies should obtain cir- 
culation. And this appears to have been the origi- 
nal of those restraints upon the freedom of publi- 
cation, which, since the invention of printing, have 
so much retarded the diffusion of truth by means 
of that great instrument. 



Part II.] 



STATE OF SOCIETY. 



543 



Libraries. 



of that century ; and although doubts may- 
be justly entertained as to the accuracy 
of this position, yet the confidence with 
which so eminent a scholar advances it 
is at least a proof that paper manuscripts 
of an earlier date are very rare.* Prin- 
ces became far more attentive to litera- 
ture wheft it was no longer confined to 
metaphysical theology and canon law. 
I have already mentioned the translations 
from classical authors, made by command 
of John and Charles V. of France. These 
French translations diffused some ac- 
quaintance with ancient history and learn- 
ing among our own country men. f The 
public libraries assumed a more 
respectable appearance. Louis 
IX. had formed one at Paris, in which it 
does not appear that any work of elegant 
literature was found. J At the beginning 
of the fourteenth century, only four clas- 
sical manuscripts existed in this collec- 
tion ; of Cicero, Ovid, Lucan, and Boe- 
thius.§ The academical library of Ox- 
ford, in 1300, consisted of a few tracts 
kept in chests under St. Mary's church. 
That of Glastonbury Abbey, in 1240, con- 

* Tiraboschi, t. v., p. 85. On the contrary side 
are Montfaucon, Mabillon, and Muratori ; the lat- 
ter of whom carries up the inventiou of our ordi- 
nary paper to the year 1000. But Tiraboschi con- 
tends that the paper used in manuscripts of so 
early an age was made from cotton rags, and, ap- 
parently, from the inferior durability of that mate- 
rial, not frequently employed. The editors of Nou- 
veau Traite de Diplomatique are of the same opin- 
ion, and doubt the use of linen paper before the 
year 1300, t. i.,p. 517, 521. Meerman.well known 
as a writer upon the antiquities of printing, offered 
a reward for the earliest manuscript upon linen 
paper, and, in a treatise upon the subject, fixed 
the date of its invention between 1270 and 1300. 
But M. Schwandner, of Vienna, is said to have 
found in the imperial library a small charter bear- 
ing the date of 1213 on such paper. — Macpherson's 
Annals of Commerce, vol. i., p. 391. Tiraboschi, 
if he had known this, would probably have main- 
tained the paper to be made of cotton, which he 
says it is difficult to distinguish. He assigns the 
invention of linen paper to Pace da Fabiano of 
Treviso. But more than one Arabian writer as- 
serts the manufacture of linen paper to have been 
carried on at Samarcand early in the eighth cen- 
tury, having been brought thither from China. 
And, what is more conclusive, Casiri positively de- 
clares many manuscripts in the Escurial of the 
eleventh and twelfth centuries to be written on 
that substance. — Bibliotheca Arabico-Hispanica, t. 
ii., p. 9. This authority appears much to outweigh 
the opinion of Tiraboschi in favour of Pace da Fa- 
biano, who must perhaps take his place at the ta- 
ble of fabulous heroes with Bartholomew Schwartz 
and Flavio Gioja. But the material point, that 
paper was very little known in Europe till the lat- 
ter part of the fourteenth century, remains as be- 
fore. 

t Warton's Hist, of English Poetry, vol. ii., 
p. 122. 

J Velly, t. v., p. 202. Crevier, t. ii., p. 36. 

^ Warton, vol. i., Dissert. II. 



tained four hundred volumes, among 
which were Livy, Sallust, Lucan, Virgil, 
Claudian, and other ancient writers.* 
But no other, probably, of that age was 
so numerous or so valuable. Richard of 
Bury, the chancellor of England, and Ed- 
ward IIL, spared no expense in collect- 
ing a library, the first perhaps that any 
private man had formed. But the scar- 
city of valuable books was still so great, 
that he gave the abbot of St. Alban's fifty 
pounds weight of silver for between 
thirty and forty volumes. f Charles V. 
increased the royal library at Paris to 
nine hundred volumes, which the Duke 
of Bedford purchased and transported to 
London. I His brother Humphrey, duke 
of Glocester, presented the university of 
Oxford with six hundred books, which 
seem to have been of extraordinary value, 
one hundred and twenty of them having 
been estimated at one thousand pounds. 
This indeed was in 1440, at which time 
such a library would not have been 
thought remarkably numerous beyond 
the A!ps,§ but England had made com- 
paratively little progress in learning. 
Germany, however, was probably still 
less advanced. Louis, Elector Palatine, 
bequeathed in 1421 his library to the uni- 
versity of Heidelberg, consisting of one 
hundred and fifty-two volumes. Eighty- 
nine of these related to theology, twelve 



* Warton, vol. i.. Dissert. II. 

I Ibid. Fifty-eight books were transcribed in 
this abbey under one abbot, about the year 1300. 
Every considerable monastery had a room, called 
Scriptorium, where this work was performed. 
More than eighty were transcribed at St. Albans 
under Whethamstede, in the time of Henry VI., 
ibid. See also Du Cange, v. Scriptores. Never- 
theless we must remember, first, that the far 
greater part of these books were mere monastic 
trash, or at least useless in our modern apprehen- 
sion ; secondly, that it depended upon the charac- 
ter of the abbot whether the scriptorium should be 
occupied or not. Every head of a monastery was 
not a Whethamstede. Ignorance and jollity, such 
as we find in Bolton Abbey, were their more usual 
characteristics. By the account-books of this 
rich monastery, about the beginning of the four- 
teenth century, three books only appear to have 
been purchased in forty years. One of those was 
the Liber Sententiarum of Peter Lombard, which 
cost thirty shillings, equivalent to near forty 
pounds at present.— Whitaker's Hist, of Craven, 
p. 330. 

t Ibid. Villaret, t. xi., p. 11". 

^ Niccolo Niccoli, a private scholar, who con- 
tributed essentially to the restoration of ancient 
learning, bequeathed a library of eight hundred vol- 
umes to the republic of Florence. This Kiccoli 
hardly published any thing of his own ; but earned 
a well-merited reputaiion by copying and correcting 
manuscripts.— Tiraboschi, t. vi., p. 114. Shep- 
herd's Poggio, p. 319. In the preceding century, 
Colluccio Salutato had procured as many as eight 
hundred volumes, ibid. p. 32. Roscoe's Lorenzo 
de' Medici, p. 55. 



644 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX 



to canon and civil law, forty-five to med- 
icine, and six to philosophy.* 

Those who first undertook to lay open 
Transcrip- the Stores of ancient learning 
lion oi man- found incredible diificulties from 
uscnpts. thescarcity of manuscripts. So 
gross and supine was the ignorance of 
the monks, within whose walls these 
treasures were concealed, that it was 
impossible to ascertain, except by inde- 
fatigable researches, the extent of what 
had been saved out of the great ship- 
wreck of antiquity. To this inquiry Pe- 
trarch devoted continual attention. He 
spared no pains to preserve the remains 
of authors, who were perishing from 
neglect and time. This danger was by 
no means past in the fourteenth centu- 
ry. A treatise of Cicero upon Glory, 
which had been in his possession, was 
afterward irretrievably lost.f He de- 
clares that he had seen in his youth the 
works of Varro ; but all his endeavours 
to recover these and the second Decad 
of Livy were fruitless. He found, how- 
ever, Quintilian, in 1350, of which there 
was no copy in Italy. | Boccaccio, and 
a man of less general fame, Colluccio 
Salutato, were distinguished in the same 
honourable task. The dihgence of these 
scholars was not confined to searching 
for manuscripts. Transcribed by slovenly 
monks, or by ignorant persons who made 
copies for sale, they required the con- 
tinual emendation of accurate critics.^ 
Though much certainly was left for the 
more enlightened sagacity of later times, 
we owe the first intelligible text of the 
Latin classics to Petrarch, Poggio, and 
their contemporary labourers in this 
vineyard for a hundred years before the 
invention of printing. 

What Petrarch began in the fourteenth 
Industry of century was carried on by a 
the fiiteemh new generation with unabating 
century. industry. The whole lives of 
Italian scholars in the fifteenth century 
were devoted to the recovery of manu- 
scripts and the revival of philology. For 
this they sacrificed their native language, 
which had made such surprising shoots 
in the preceding age, and were content 
to trace, in humble reverence, the foot- 
steps of antiquity. For this too they 
lost the hope of permanent glory, which 
can never remain with imitators, or such 
as trim the lamp of ancient sepulchres. 



* Schmidt, Hist, des Allemands, t. v., p. 520. 

■f He had lent it to .i needy man of letters, who 
pawned the book, which was never recovered. — De 
Sade, t. i., p. 57. 

X Tiraboschi, p. 89. 

9 Idem, t. v., p. 83. De Sade, t. i., p. 88. 



No writer perhaps of the fifteenth cen- 
tury, except Politian, can aspire at pres- 
ent even to the second class, in a just 
marshalling of literary reputation. Hut 
we owe them our respect and gratitude 
for tlieir taste and diligence. The dis- 
covery of an unknown manuscript, says 
Tiraboschi, was regarded alm<}st as the 
conquest of a kingdom. The classical 
writers, he adds, were chiefly either found 
in Italy, or at least by Italians ; they 
were first amended and first printed in 
Italy, and in Italy they were first col- 
lected in public libraries.* This is sub- 
ject to some exception when fairly con- 
sidered ; several ancient authors were 
never lost, and therefore cannot be said 
to have been discovered; and we know 
that Italy did not always anticipate other 
countries in classical printing. But her 
superior merit is incontestable.' Poggio 
Bracciolini, who stands perhaps at po^.j^ 
the head of the restorers of learn- 
ing in the earlier part of the fifteenth 
centurj^ discovered in the monastery of 
St. Gall, among dirt and rubbish, in a 
dungeon scarcely fit for condemned crim- 
inals, as he describes it, an entire copy 
of Quintilian, and part of Valerius Flac- 
cus. This was in 1414; and soon after- 
ward lie rescued the poem of Silius Ital- 
icus, and twelve comedies of Plautus, in 
addition to eight that were previously 
known; besides Lucretius, Columella, 
Tertullian, Ammianus Marcellinus, and 
other writers of inferior note.f A bishop 
of Lodi brought to light the rhetorical 
treatises of Cicero. Not that we must 
suppose these books to have been univer- 
sally unknown before ; Quintilian, at 
least, is quoted by English writers much 
earlier. But so little intercourse pre- 
vailed among difl^erent countries, and the 
monks had so little acquaintance with 
the riches of their conventual libraries, 
that an author might pass for lost in Italy, 
who was familiar to a few learned men 
in other parts of Europe. To the name 
of Poggio we may add a number of oth- 
ers, distinguished in this memorable res- 
urrection of ancient literature, and united, 
not always indeed by friendship, for their 
bitter animosities disgrace their profes- 
sion, but by a sort of cominon sympathy 
in the cause of learning; Filelfo, Lauren- 
tins Valla, Niccolo Niccoli, Ambrogio 
Traversari, more commonly called II 
Camaldolense, and Leonardo Aretino. 
From the subversion of the Western 

» Tiraboschi, p. 101. 

t Idem, t. vi., p. 164 ; and Shepherd's Life of 
Poggio, p. 106, 110. Roscoe's Lorenzo de' Med 
ici, p. 38. 



Fart IL] 



STATE OF SOCIETY. 



045 



Greek Ian- Empire, OT at least from the 
guage un- time when Rome ceased to pay 
known in obedience to the exarchs of Ra- 
the west. ^,gj^j^3^ ^Y^Q Greek language and 
literature had been almost entirely for- 
gotten within the pale of the Latin ch\irch. 
A very few exceptions might be found, 
especially in the earlier period of the 
middle ages, while the Eastern emperors 
retained their dominion over part of 
Italy.* Thus Charlemagne is said to 
have established a school for Greek at 
Osnaburg.f John Scotus seems to have 
been well acquainted with the language. 
And Greek characters may occasionally, 
though very seldom, be found in the wri- 
tings of learned men ; such as Lanfranc 
or William of Malmsbury.| It is said 
that Roger Bacon understood Greek ; and 
his eminent contemporary, Robert Gros- 
tete, bishop of Lincoln, had a sufficient 



* Schmidt, Hist, des Allemands, t. ii., p. 374. 
Tiraboschi, t. iii., p. 124, et alibi. Bede extols 
Theodore, primate ol' Canterbury, and Tobias, bish- 
op of Rochester, for their knowledge of Greek. — 
Hist. Eccles., c. 9 and 24. But the former of these 
prelates, if not the latter, was a native of Greece. 

t Hist. Litteraire de la France, t. iv., p. 12. 

i Greek characters are found in a charter of 943, 
published in Martenne, Thesaurus Anecdot., t. i., 
p. 74. The title of a treatise, izcpt cpvacuiv jitpiaiia, 
and the word QtoroKoi, occur in William of Malms- 
bury, and one or two others in Lanfranc's Constitu- 
tions. It is said that a Greek psalter was written 
in an abbey at Tournay about 1105.— Hist. Litt.de 
la France, t. ix., p. 102. This was, I should think, 
a very rare instance of a Greek manuscript, sacred 
or profane, copied in the western parts of Europe 
before the fifteenth century. But a Greek psalter, 
written in Latin characters at Milan in the ninth 
century, was sold some years ago in London. John 
of Salisbury is said by Crevier to have known a lit- 
tle Greek, and he several times uses technical 
words in that language. Yet he could not have 
been much more learned than his neighbours ; 
since having found the word suia in St. Ambrose, he 
was forced to ask the meaning of one John Sara- 
sin, an Englishman, because, says he, none of our 
masters here (at Paris) understand Greek. Paris, 
indeed, Crevier thinks, could not furnish any Greek 
scholar in that age except Abelard and Heloise, 
and probably neither of them knew much. — Hist. 
de rUnivers. de Paris, t. i., p. 259. 

The ecclesiastical language, it maybe observed, 
was full of Greek words Latinized. But this pro- 
cess had taken place before the fifth century ; and 
most of them will be found in the Latin dictiona- 
ries. A Greek word was now and then borrowed, 
as more imposing than the correspondent Latin. 
Thu.s the English and other kings sometimes called 
themselves Basileus instead of Rex. 

It will not be supposed that I have professed to 
enumerate all the persons of whose acquaintance 
with the Greek tongue some evidence may be 
found; nor have I ever directed my attention to the 
subject with that view. Doubtless the list might 
be more than doubled. But, if ten times the num- 
ber cuuld be found, we should still be entitled to say 
that the language was almost unknown, and that 
it could have had no influence on the condition of 
literature. 

M m 



intimacy with it to write animadversions 
upon Suidas. Since Greek was spoken 
with considerable purity by the noblo 
and well educated natives of Constanti- 
nofde, we may wonder that, even as a 
living language, it was not better known 
by the western nations, and especially in 
so neighbouring a nation as Italy. Yet 
here the ignorance was perhaps even 
more complete than in France or V.ng- 
land. In some parts indeed of Calabria, 
which had been subject to the eastern 
empire till near the year 1100, the liturgy 
was still performed in Greek ; and a con- 
siderable acquaintance with the language 
was of course preserved. But for the 
scholars of Italy, Boccaccio positively 
asserts, that no one understood so much 
as the Greek characters.* Nor is there 
probably a single line quoted from any 
poet in that language from the sixth to 
the fourteenth century. 

The first to lead the way in restoring 
Grecian learning in Europe j^^ g,„jy re- 
were the same men who had vives in the 
revived the kindred muses of 'ce^uuT""* 
Latium, Petrarca and Boccac- 
cio. Barlaam, a Calabrian by birth, during 
an embassy from the court of Constantino- 
ple in 1335, was persuaded to become the 
preceptor of the former, with whom he 
read the works of Plato. f Leontius Pi- 
latus, a native of Thessalonica, was en- 
couraged some years afterward by Boc- 
caccio to give public lectures upon 
Homer at Florence. | Whatever might 
be the share of general attention that he 
excited, he had the honour of instructing 
both these great Italians in his native 
language. Neither of tliem perhaps 
reachi^ed an advanced degree of profi- 
ciency ; but they bathed their lips in the 
fountain, and enjoyed the pride of being 
the first who paid the homage of a new 
posterity to the father of poetry. For 
some time little fruit apparently resulted 
from their example ; but Italy had im- 
bibed the desire of acquisitions in a 
new sphere of knowledge, which, after 
some interval, she was abundantly en- 
abled to realize. A few years before 
the termination of the fourteenth century, 



* Nemo est qui Graecas literas norit ; at ego in 
hoc Latinitati compatior, quae sic omnino Gra?ca ab- 
jecit studia, ut etiam non noscatnus characteres 
literarum. — Genealogiaj Deorum, apud Hodium de 
Grscis Illustribus, p. 3. 

t Mem. de Petrarque, t. i., p. 407. 

t Idem, t. i., p. 447; t. iii., p. 634. Hody, de 
Grsecis lllust., p. 2. Boccace speaks modestly 
of his own attainments in Greek ; etsi non satis 
plene perceperiin, percepi tamen quantum potui ; 
nee dubiuni, si permansisset homo ille vagus diu- 
tius penes nos, quin plenius oercepissem, id., p 4> 



<Kr 



546 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



Emanuel Chrysoloras, whom tlie Empe- 
ror John Palasologiis had previously sent 
into Italy, and even as far as England, 
upon one of those unavailing embassies 
by which the Byzantine court strove to 
obtain sympathy and succour from Eu- 
rope, returned to Florence as a public 
teacher of Grecian literature.* His school 
was afterward removed successively to 
Pavia, Venice, and Rome ; and during 
nearly twenty years that he taught in 
Italy, most of those eminent scholars 
whom I have already named, and who 
distinguish the first half of that century, 
derived from his instruction their knowl- 
edge of the Greek tongue. Some, not 
content with being the disciples of Chry- 
soloras, betook themselves to the source 
of that literature at Constantinople ; and 
returned to Italy not only with a more 
accurate insiglit into the Greek idiom 
than they could have attained at home, 
h'Z with copious treasures of manuscripts, 
few, if any, of which probably existed 
previously in Italy, where none' had abil- 
ity to read or value them ; so that the 
principal authors of Grecian antiquity 
may be considered as brought to light by 
these inquiries, the most celebrated of 
whom are Guarino of Verona, Aurispa, 
and Filelfo. The second of these brought 
home to Venice in 1423 not less than two 
hundred and thirty-eight volumes. f 

The fall of that eastern empire, which 
State of had so long outlived all other 
learning in preteusious to rcspect that it 
^''^^''^- scarcely retained that founded 
upon its antiquity, seems to have been 
providentially delayed till Italy was ripe 
to novn-ish the scattered seeds of htera- 
ture that would have perished a fe\^^ges 
earlier in the common catastrophe. From 
the commencement of the fifteenth cen- 
tury, even the national pride of Greece 
could not blind her to the signs of ap- 
proaching ruin. It was no longer possi- 
ble to inspire the European republic, dis- 
tracted by Avars and restrained by calcu- 
lating policy, with the generous fanati- 
cism of the crusades ; and at the council 
of Florence, in 1439, the court and church 
of Constantinople had the mortification 
of sacrificing their long-cherished faith, 
without experiencing any sensible return 
of protection or security. The learned 
Greeks were perhaps the first to antici- 
pate, and certainly not the last to avoid, 



* Hody places the commencement of Chrysolo- 
ras's teaching as early as 1391, p. 3. But Tirabos- 
chi, whose research was more precise, fixes it at 
the end of 1396 or beginning of 1397, t. vii., p. 126. 

t Tiraboschi, t. vi., p. 102. Roscoe's Lorenzo 
de' Medici, vol. i., p. 43. 



their country's destruction. The council 
of Florence brought many of them into 
Italian connexions, and held out at least 
a temporary accommodation of their con- 
flicting opinions. Though the Roman 
pontics did nothing, and probably could 
have done nothing effectual, for the em- 
pire of Constantinople, they were very 
ready to protect and reward the learning 
of individuals. To Eugenius IV., to 
Nicolas v., to Pius II., and some other 
popes of this age, the Greek exiles were 
indebted for a patronage which they re- 
paid by splendid services in the restora- 
tion of their native literature throughout 
Italy. Bessarion, a disputant on the 
Greek side in the council of Florence, 
was well content to renounce the doc- 
trine of single procession for a cardinal's 
hat ; a dignity which he deserved for his 
learning, if not for his pliancy. Theo- 
dore Gaza, George of Trebizond, and Ge- 
mistus Pletho, might equal Bessarion in 
merit, though not in honours. They all, 
however, experienced the patronage of 
those admirable protectors of letters, Nic- 
olas v., Cosmo de' Medici, or Alfonso, 
king of Naples. These men emigrated 
before the final destruction of the Greek 
empire ; Lascaris and Musurus, whose 
arrival in Italy was posterior to that 
event, may be deemed perhaps still more 
conspicuous ; but as the study of the 
Greek language was already restored, it 
is unnecessary to pursue the subject any 
farther. 

The Greeks had preserved, through 
the course of the middle ages, their share 
of ancient learning with more fidelity 
and attention than was shown in the 
west of Europe. Genius indeed, or any 
original excellence, could not well exist 
along with their cowardly despotism and 
their contemptible theology, more cor- 
rupted by frivolous subtleties than that 
of the Latin church. The spirit of per- 
secution, naturally allied to despotism 
and bigotry, had nearly, during one period, 
extinguished the lamp, or at least reduced 
the Greeks to a level with the most igno- 
rant nations of the west. In the age of 
Justinian, who expelled the last Platonic 
philosophers, learning began rapidly to 
decline ; in that of Heraclius, it had 
reached a much Ibwer point of degrada- 
tion ; and for two centuries, especially 
while the worshippers of images were 
persecuted with unrelenting intolerance, 
there is almost a blank in the annals ol 
Grecian literature.* But about the mid- 



* The authors most conversant with Byzantino 
learning agree in this. Nevertheless, there is one 
manifest dififerencc between the Greek writers of 



Part II.] 



STATE OF SOCIETY. 



547 



die of the ninth century it revived pretty 
suddenly, and with considerable success.* 
Though, as I have observed, we find in 
very few instances any original talent, 
yet it was hardly less important to have 
had compilers of such erudition as Pho- 
tius, Suidas, Eustathius, and Tzetzes. 
With these certainly the Latins of the 
middle ages could not place any names 
in comparison. They possessed, to an 
extent which we cannot precisely appre- 
ciate, many of those poets, historians, 
and orators of ancient Greece, whose 
loss we have long regretted, and must 
continue to deem irretrievable. Great 
havoc, however, was made in the libraries 
of Constantinople at its capture by the 
Latins ; an epoch from which a rapid de- 
cline is to be traced in the literature of 
the eastern empire. Solecisms and bar- 
barous terms, which sometimes occur in 
the old Byzantine writers, are said to de- 
form the style of the fourteenth and fif- 
teenth centuries. t The Turkish ravages 



the worst period, such as the eighth century, and 
those who correspond to them in the west. Syn- 
cellus, for example, is of great use in chronology, 
because he was acquainted with many ancient his- 
tories now no more. But Bede possessed nothing 
which we have lost ; and his compilations are con- 
sequently altogether unprofitable. The eighth cen- 
tury, the saecuium iconoclasticum of Cave, low as 
it was in all polite literature, produced one man, 
St. John Damascenus, who has been deemed the 
founder of scholastic theology, and who at least set 
the e.xample of that style of reasoning in the East. 
This person, and Michael Psellus, a philosopher 
of the eleventh century, are the only considerable 
men as original writers in the annals of Byzantine 
literature. 

* The honour of restoring ancient or heathen lit- 
erature is due to the Cesar Bardas, uncle and min- 
ister of Michael II. Cedrenus speaks of it in the 

following terms : tnCjttXrih! it kul tj;j £|(0 co(pias (riv 
yap tK iroWov ^povov -rrapa^'pvziaa, Kai irpo; to fiiqitv 
iXiiJS ■)(^{oprjaaaa rji rmv xparouvTiov apyia Kai ajxadiq), 
6caTpi6ai tKaarri twv nnaTnjiWV aifiopiaag, tuiv fitv aWutv 
btrt) ircp CTv^e, rrji 6' cm iracuv £7ro;^ou ipi\oaoq>iai Kar' 
avra ra liaotXcia tv rrj ^layvavpqt' km oItu) t^ tKtivov 
avrjUacKCiv a'l eniaTtjpai Tjp^avTO, k. t. X. — Hist. By- 
zant. Script. (Lutet.), t. x., p. 547. Bardas found 
out and promoted Photius, afterward patriarch of 
Constantinople, and equally famous in the annals 
of the church and of learning. Gibbon passes per- 
haps too rapidly over the Byzantine literature, 
chap. 53. In this, as in many other places, the 
masterly boldness and precision of his outline, 
which astonish those who have trodden parts of 
the same field, are apt to escape an uninformed 
reader. 

+ Du Cange, Prsefatio ad Glossar. Graecitatis 
Medii ^Evi. Anna Comnena quotes some popular 
lines, which seem to be the earliest specimen ex- 
tant of the Romaic dialect, or something approach- 
ing it, as they observe no grammatical inflection, 
and bear about the same resemblance to ancient 
Greek that the worst law charters of the ninth and 
tenth centuries do to pure Latin. In fact, the 
Greek language seems to have declined much in 
the same manner as the Latin did, and almost at 
as early a period. In the sixth century, Damas- 
Mm2 



and destruction of monasteries ensued; 
and in the cheerless intervals of immedi- 
ate terror, there was no longer any en- 
courageTnent to preserve the monuments 
of an expiring language, and of a name 
that was to lose its place among nations.* 
That ardour for the restoration of clas- 
sical literature which animated Italy in 



cius, a Platonic philosopher, mentions the old lan- 
guage as distinct from that which was vernacular, 

Triv ap')(aiav yXuTrav {iffcp Tijv i^ni)Tr)v jj.tXcrovci. — Du 

Cange, ibid., p. 11. It is well known that the pop- 
ular, or political verses of Tzetzes, a writer of the 
twelfth century, are accentual ; that is, are to be 
read, as the modern Greeks do, by treating every 
acute or circumflex syllable as long, without re- 
gard to its original quantity. This innovation, 
which must have produced still greater confusion 
of metrical rules than it did in Latin, is much older 
than the age of Tzetzes ; if, at least, the editor of 
some notes subjoined to Meursius's edition of the 
Themata of Constantino Porphyrogenitus (Lug- 
duni, 1617) is right in ascribing certain political 
verses to that emperor, who died in 959. These 
verses are regular accentual trochaics. But I be- 
lieve they have since been given to Constantino 
Manasses, a writer of the eleventh century. 

According to the opinion of a modern traveller 
(Hobhouse's Travels in Albania, letter 33), the 
chief corruptions which distinguish the Romaic 
from its parent stock, especially the auxiliary verbs, 
are not older than the capture of Constantinople by 
Mahomet II. But it seems dilficuit to obtain any 
satisfactory proof of this ; and the auxiliary verb is 
so natural and convenient, that the ancient Greeks 
may probably, in some of their local idioms, have 
fallen into the use of it ; as Mr. H. admits they did 
with respect to the future auxiliary 3-£X(i>. See 
some instances of this in Lesbonax tztpi a^xriftarutv, 
ad finem Ammonii, cura Valckenaer. 

* Photius (I write on the authority of M. Heeren) 
quotes Theopompus, Arrian's history of Alexan- 
der's Successors, and of Parthia, Ctesias, Agathar- 
cides, the whole of Diodorus Siculus, Polybius, 
and Dionysius of Halicarnassus, twenty lost ora- 
tions of Demosthenes, almost two hundred of Lys- 
ias, sixty-four of Isaeus, about fifty of Hyperides. 
Heeren ascribes the loss of these works altogether 
to the Latin capture of Constantinople, no writer 
subsequent to that time having quoted them. — 
Essai sur les Croisades, p. 413. It is difficult, how- 
ever, not to suppose that some part of the destruc- 
tion was left for the Ottomans to perform. .^Eneas 
Sylvius bemoans, in his speech before the diet of 
Frankfort, the vast losses of literature by the re- 
cent subversion of the Greek empire. Quid de li- 
bris dicam, qui illic erant innumerabiles, nondum 

Latinis cogniti ! Nunc ergo, et Homero et 

Pindaro et Menandro et omnibus illustrioribus poe- 
tis, secunda mors erit. But nothing can be infer- 
red from this declamation, except, perhaps, that he 
did not know whether Menander still existed or 
not.— ^n. Syl., Opera, p. 715; also p. 881. Har- 
ris's Philological Inquiries, part iii., c. 4. It is a 
remarkable proof, however, of the turn which En- 
rope, and especially Italy, was taking, that a pope's 
le"-ate should, on a solemn occasion, descant so se- 
riously on the injury sustained by profane literature. 
A useful summary of the lower Greek literature, 
taken chiefly from the Bibliotheca Gra?ca of Fabri- 
cius, will be found in Berington's Literary History 
of the Middle Ages, Appendix I. ; and one rather 
more copious in Schoell, Abreg6 de la Litterature 
Grecque (Paris, 1812). 



548 



EUROPE DURING THE MIDDLE AGES. 



[Chap. IX. 



Literature the first part of the fifteenth 

not much , ^ , 

improved ceiitury, was by no means com- 
beyomi nion to the rest of Europe. Nei- 
'"^^" ther England, nor France, nor 
Germany seemed aware of the approach- 
ing change. We are told that learn- 
ing, by which I beheve is only meant 
the scholastic ontology, had begun to 
decline at Oxford from the time of 
Edward III.* And the fifteenth centu- 
ry, from whatever cause, is particularly 
barren of writers in the Latin language. 
The study of Greek was only introduced 
by Grocyn and Linacer under Henry VII., 
and met with violent opposition in the 
university of Oxford, where the unlearned 
party styled themselves Trojans, as a 
pretext for abusing and insulting the 
scholars.! Nor did any classical work 
proceed from the respectable press of 
Caxton. France, at the beginning of the 
fifteenth age, had several eminent theo- 
logians; but the reigns of Charles VII. 
and Louis XI. contributed far more to 
her political than her literary renown. 
A Greek professor was first appointed at 
Paris in 1458, before which time the lan- 
guage had not been publicly taught, and 
was little understood. | Much less had 
Germany thrown off her ancient rude- 
ness, ifeneas Sylvius indeed, a deliber- 
ate flatterer, extols every circumstance 
in the social state of that country ; but 
Campano, the papal legate at Ratisbon in 
1471, exclaims against the barbarism of 
a nation where very few possessed any 
learning, none any elegance.*^ Yet the 
progress of intellectual cultivation, at 
least in the two former countries, was 
uniform, though silent ; libraries became 
more numerous, and books, after the 
happy invention of paper, though still 
very scarce, might be copied at less ex- 
pense. Many colleges were founded in 
the English as well as foreign universi- 
ties during the fourteenth and fifteenth 
centuries. Nor can I pass over institu- 

* Wood's Antiquities of Oxford, vol. i., p. 537. 

t Roper's Vita Mori, ed. Hearne, p. 75. 

t Crevier, t. iv., p. 243 ; see too p. 46. 

(j Incredibilis ingeniorum barbaries est ; rarissimi 
literas nonint, nulli elegantiam.— Papiensis Epis- 
tola?, p. 377. Campano's notion of elegance was 
ridiculous enough. Nobody ever carried farther 
the pedantic. affectation of avoiding modern terms 
in his latinity. Thus, in the life of Braccio da Mon- 
tone, he renders his meaning almost unintelligible 
by excess of classical purity. Braccio boasts se 
nunquain deorum immortalium templa violasse. 
Troops committing oul.ages in a city are accused 
virgines vestales incestasse. In the terms of 
treaties, he employs the old Roman forms ; exerci- 
tum trajicito — oppida pontiticis sunto, &c. And 
with a most absurd pedantry, the ecclesiastical 
state is called Romanum imperium. — Campani 
Vita Braccii, in Muratori, Script. Rer. Ital., t. xix. 



tions that have so eminently contributed 
to the literary reputation of this country, 
and that still continue to exercise so con- 
spicuous an influence over her taste and 
knowledge, as the two great schools of 
grammatical learning, Winchester and 
Eton ; the one founded by William of 
Wykeham, bishop of Winchester, in 1373; 
the other, in 1432, by King Henry the 
Sixth.* 

But while the learned of Italy were ea- 
gerly exploring their recent ac- invemioa 
quisitions of manuscripts, deci- °^ printing 
phered with difficulty, and slowly circula- 
ted from hand to hand, a few obscure Ger- 
mans had gradually perfected the most im- 
portant discovery recorded in the annals 
of mankind. The invention of printing, so 
far from being the result of philosophical 
sagacity, does not appear to have been 
suggested by any regard to the higher 
branches of literature, or to bear any 
other relation than that of coincidence to 
their revival in Italy. The question, why 
it was struck out at that particular time, 
must be referred to that disposition of 
unknown causes which we call accident. 
Two or three centuries earlier, we cannot 
but acknowledge the discovery would 
have been almost equally acceptable. 
But the invention of paper seems to have 
naturally preceded those of engraving 
and printing. It is generally agreed, 
that playing cards, which have been 
traced far back in the fourteenth century, 
gave the first notion of taking off impres- 
sions from engraved figures upon wood. 
The second stage, or rather second appli- 
cation of this art, was the representation 
of saints and other religious devices, sev- 
eral instances of which are still extant. 
Some of these are accompanied with an 
entire page of illustrative text, cut into 
the same wooden block. This process 
is indeed far removed from the invention 
that has given immortality to the names 
of Fust, Schoeffer, and Guttenburg, yet it 
probably led to the consideration of 
means whereby it might be rendered less 
operose and inconvenient. Whether 
moveable wooden characters were ever 
employed in any entire work is very ques- 
tionable ; the opinion that referred their 
use to Laurence Coster of Haarlem not 

* A letter from Master William Paston at Eton 
(Paston Letters, vol. i., p. 299) proves that Latin 
versification was taught there as early as the be 
ginning of Edward IV.'s reign. It is true that the 
specimen he rather proudly exhibits does not much 
differ from what we denominate nonsense verses. 
But a more material observation is, that the sons 
of country gentlemen living at a considerable dis- 
tance were already sent to public schools for gram- 
matical education. 



Part II.] 



STATE OF SOCIETY. 



649 



havinff stood the test of more accurate 
investigation. They appear, however, 
in the capital letters of some early print- 
ed books. But no expedient of this kind 
could have fulfilled the great purposes 
of this invention, until it was perfected 
by founding metal types in a matrix or 
mould, the essential cliaracteristic of 
printing, as distinguished from other arts 
that bear some analogy to it. 

The first book that issued from the 
presses of Fust and his associates at 
Mentz was an edition of the Vulgate, 
commonly called the Mazarine Bible, a 
copy having been discovered in the li- 
brary that owes its name to Cardinal 
Mazarin at Paris. This is supposed to 
have been printed between the years 
1450 and 1455.* In 1457 an edition of 
the Psalter appeared, and in this the in- 
vention was announced to the world in a 
boasting colophon, though certainly not 
unreasonably bold.f Another edition of 
the Psalter, one of an ecclesiastical book, 
Durand's account of liturgical offices, one 
of the Constitutions of Pope Clement V., 
and one of a popular treatise on general 
science, called the Catholicon, fill up the 
interval till 1462, when the second Mentz 
Bible proceeded from the same printers. | 
This, in the opinion of some, is the ear- 
liest book in which cast types were em- 
ployed ; those of the Mazarine Bible hav- 
ing been cut with the hand. But this is 
a controverted point. In 1465, Fust and 
Schceffer pubhshed an edition of Cicero's 
Offices, the first tribute of the new art to 
polite literature. Two pupils of their 
school, Sweynheim and Pannartz, mi- 
grated the same year into Italy, and 
printed Donatus's grammar, and the works 
of Lactantius, at the monastery of Subi- 
aco in the neighbourhood of Rome.^ 



* De Bure, t. i., p. 30. Several copies of this 
book have come to light since its discovery. 

+ Idem, t. i., p. 71. 

i Mem. de I'Acad. des Inscriptions, t. xiv., p. 
265. Another edition of the Bible is supposed to 
have been printed by Pfister at Bamberg m 1459. 

i) Tiraboschi, t. vi., p. 140. 



Venice had the honour of extending her 
patronage to John of Spira, the first who 
appUed the art on an extensive scale to 
the publication of classical writers.* 
Several Latin authors came forth from 
his press in 1470; and during the next 
ten years, a multitude of editions were 
pubhshed in various part^ of Italy. 
Though, as we may judge from their 
present scarcity, these editions were by 
no means numerous in respect of impres- 
sions, yet, contrasted with the dilatory 
process of copying manuscripts, they 
were like a new mechanical power in 
machinery, and gave a wonderfully ac- 
celerated impulse to the intellectual cul- 
tivation of mankind. From the era of 
these first editions proceeding from the 
Spiras, Zarot, Janson, or Sweynheim, 
and Pannartz, literature must be deemed 
to have altogether revived in Italy. The 
sun was now fully above the horizon, 
though countries less fortunately circum- 
stanced did not immediately catch 'his 
beams ; and the restoration of ancient 
learning in France and England cannot 
be considered as by any means effectual 
even at the expiration of the fifteenth 
century. At this point, however, I close 
the present chapter. The last twenty 
years of the middle ages, according to 
the date which I have fixed for their ter- 
mination in treating of political history, 
might well invite me by their brilliancy 
to dwell upon that golden morning of 
Itahan Hterature. But, in the history of 
letters, they rather appertain to the mod- 
ern than the middle period ; nor would it 
become me to trespass upon the ex- 
hausted patience of my readers by re- 
peating what has been so often and so re- 
cently told, the story of art and learning 
that has employed the comprehensive re- 
search of a Tiraboschi, a Ginguene, and 
a Roscoe. 



* Sanuto mentions an order of the senate in 
1469, that John of Spira should print the epistles 
of Tuliy and Plmy for five years, and that no one 
else should do so.— Script. Reriim Italic, t. xxii., 
p. 1189. 



INDEX. 



A. 

Abbassides, khaliffs of the dynasty of, 253 ; de- 
cline of their power, ib. 

Abelard (Peter), biographical notice of, 523. 

Acre, commercial prosperity of, 479, and note. 

Acts of parliament, an ill-digested mass of legisla- 
tive enactments, 348, 349 ; consent of both houses 
of parliament necessary to pass them, 376. 

Adrian IV. (pope), insolent conduct of, 286; the 
only Englishman that ever sat in the papal chair, 
ib. 

Adventurers (military), companies of, formed, 180 ; 
and organized by Guarnieri, ib. ; ravages of the 
great company, ib. ; account of the company of 
St. George, 182. 

Advocates of the church, their office, 88 ; to con- 
vents, their powers and functions, ib. 

Agnes Sorel (mistress of Charles VII.), not such 
probably at the siege of Orleans, 54, note. 

Agriculture, wretched state of, in the dark ages, 
471 ; particularly in England, 495, 490 ; in some 
degree, however, progressive, 494, 495 ; its con- 
dition in France and Italy, 496, 497. 

Aids (feudal), in what cases due, 80; when due 
and how levied in England, under the Norman 
kings, 338, 339 ; not to be imposed without the 
consent of parliament, 342. 

Albans (St.), when first represented in parliament, 
367, 368. 

Albert, archduke of Austria, oppresses the Swiss, 
246 ; his death, ib. 

Albert II. (emperor of Germany), reign of, 237. 

Albigeois, crusade against, 29 ; their tenets, 504, 
505, and notes. 

Alfonso of Aragon, adopted by Joanna II., queen of 
Naples, 189 ; ascends the throne, 190; forms an 
alliance with Milan, ib. ; joins the quadruple 
league of 1455, 191 ; his death and character, ib. 

Alfred the Great, extent of his dominions, 319; 
was not the inventor of trial by jury, 325 — 327 ; 
nor of the law of frankpledge, 327, 328. 

Alice Ferrers (mistress of Edward III.), parliament- 
ary proceedings against, 380; repealed, ib. ; again 
impeached, 381. 

Alienation of lands, fines on, 78, 79. 

Alienations in mortmain, restrained in various parts 
of Europe, 301. 

Aliens, liable for each other's debts, 483. 

Allodial lands, nature of, 65 ; when changed into 
feudal tenures, 72. 

Alvaro de Luna, power and fall of, 205. 

Ainalfi (republic of), notice of, 479; the mariner's 
compass not invented there, 481 ; the Pandects, 
whether discovered there, 520. 

Anglo-Norman government of England, tyranny of, 
337 ; its exactions, 338 ; general ta.xes, ib. ; rights 
of legislation, 339 ; laws and charters of the An- 
glo-Norman kings, 340 ; state of the constitution 
under Henry III., 342; courts of justice, 345 — 
347. 
Anglo-Saxons, historical sketch of, 319, 320 ; influ- 
ence of provincial governors, 321 •, distribution 



of the people into thanes and ceorls, ib. ; their 
wittenagemot, 322, 323 ; judicial power, 323 ; di- 
vision into counties, hundreds, and tithings, ib. ; 
their county court, and suits therein, 324, 325 ; 
trial by jury, 325 ; law of frankpledge, 327 ; 
whether the system of feudal tenures was known 
to the Anglo-Saxons, 329-332. 

Andrew (king of Naples), murder of, 187. 

Anjou. See Charles (count of Anjou). Anne 
(dutchess of Bntany) married by Charles VIII. 
of France, 03. 

Antrustions, leudes, or fideles, of the Frank empire, 
rank and dignity of, 68 ; were considered as no- 
ble, 70. 

Appanages, nature of, 57. 

Appeals for denial of justice in France, account of, 
110; the true date of, ib., note. 

Appeals to the Roman see, when established, 271, 
272. 

Arabia, state of, at the appearance of Mahomet, 249. 

Aragon (kingdom of), when founded, 198 ; its pop- 
ulation, 219, note; its constitution, 218; origi- 
nally a sort of regal aristocracy, ib. ; privileges 
of the ricos hombres or barons, ib. ; of the lower 
nobility, ib. ; of the burgesses and peasantry, ib. ; 
liberties of the Aragonese kingdom, ib. ; general 
privilege of 1283, 219; privilege of union, ib. ; 
when abolished, 229 ; office of justiciary, when 
established, ib. ; office and power of the justicia- 
ry, 220, 221, 223 ; rights of legislation and taxa 
tion, lb. ; cortes of Aragon, 224; popular repre- 
sentation more ancient in Aragon than in any 
other monarchy, ib., note; police, 225; union of 
this kingdom with Castile, ib. 

Arbitration, determination of suits by, prevalent in 
the church, 265, 266. 

Archenfeld (manor of), private feuds, allowed in by 
custom, 352, note. 

Archers (Enghsh), superiority of, 41, 42 ; their pay. 
52 ; were employed by W^illiam the Conqueror, 
183. 

Architecture (civil), state of, in England, 488 — 190 ; 
in France, 490 ; in Italy, ib. 

Architecture (ecclesiastical), state of, 492 — 494. 

Ardoin, marquis of Ivrea, elected king of Italy, 127. 

Aristotle, writings of, first known in Europe 
through the Spanish Arabs, 526, note ; his wri- 
tings ill understood and worse translated by the 
schoolmen, 527; irreligion the consequence of 
the unbounded admiration of his writings, 528, 
and note. 

Armagnacs, faction of, 49 ; their proceedings, 49, 50. 

Armorial bearings, origin of, 85, 86. 

Armorican republic, existence of, questionable, 17, 
and notes. 

Arms (defensive), of the fifteenth century, 182, 183. 

Army (English), pay of, in the fourteenth century, 
52, 122, note. 

Army (French). — A standing army first established 
bv Charles VII., 122, 123. 

Asia, invasion of, by the Karismians and Moguls, 
257. 

Assemblies, See Legislative Assemblies. 



652 



INDEX. 



Assize, justices of, when instituted, 346; their 

functions and powers, 346, 347. 
Augustine (St.), specimen of the barbarous poetry 

of, 457, note. 
Aulic council, powers and jurisdiction of, 242. 
Auspicius (bishop of Toul), specimen of the Latin 

poetry of, 458, iiote. 
Auxiliary verb (active), probable cause of, 456, 457. 
Avignon, Roman see removed to, 304 ; rapacity of 

the Avignon popes, 306, 307. 
Azincourc, battle of, 51, and note. 

B. 

Bacon (Roger), singular resemblance between him 
and Lord Bacon, 529, note ; specimen of his phi- 
losophical spirit, ib. 

Baltic trade, state of, 477 ; origin and progress of 
the Hanseatic league, 477, 478. 

Banking, origin of, 484; account of various Italian 
banks, 485. 

Bagdad, khalifs of, account of, 252, 253. 

Barbarians, inroads of, one cause of the decline of 
literature in the latter periods of the Roman em- 
pire, 453, 454. 

Bardas (Cesar), efforts of, to revive classical liter- 
ature in Greece 547, note. 

Barnstaple (borough of), when first represented in 
parliament, 368, 369. 

Baronies (English), inquiry into the nature of, 357 ; 
theory of Selden, that tenants in chief by knight- 
service were parliamentary barons by reason of 
their tenure, ib. ; theory of Madox, that they were 
distinct, ib. ; observations on both, 357, 358 ; 
whether mere tenants in chief attended parlia- 
ment under Henry III., 358, 359. 

Barons (Aragonese), privileges of, 218. 

Barons of France, right of private war exercised 
by them, 94 ; legislative assemblies occasionally 
held by them, 99 ; account of their courts of 
justice, 108, 109 ; trial by combat allowed in cer- 
tain cases, 109, 110. 

Barrister, moderate fees of, in the fifteenth centu- 
ry, 500. 

Basle, proceedings of the council of, 311. 

Bedford (duke of), regent of France during the mi- 
nority of Henry VI., 52 ; his character, ib. ; causes 
of his success, ib. ; his progress arrested by the 
siege of Orleans, 53. 

Belgrade, siege of, 245. 

Benedict XIII. (pope), contested election of, 308, 
309 ; deposed at the council of Pisa, 309. 

Benefices, grants of land so called, 70 ; their ex- 
tent, 70 — 72. 

Benefices (ecclesiastical), gross sale of in the elev- 
enth century, 279 ; Boniface, marquis of Tusca- 
ny, flogged by an abbot for selling benefices, 280, 
note ; presentalion to them in all cases claimed 
by the popes, 295. 

Benevolences, when first taken in England, 449. 

Bernard, king of Italy, put to death by Louis the 
Debonair, 23. 

Bianchi, a set of enthusiasts, notice of, 464. 

Bills in parliament, power of originating claimed by 
the house of commons, 402 — 104. 

Bishops, ecclesiastical jurisdiction of, 265; their 
political power, 266; their pretensions in the 
ninth century, 268, 269; remarks on the suppo- 
sed concession of the title of universal bishop to 
the bishops of Rome, 271, 272, notes ; encroach- 
ments of the popes on the bishops, 274; how 
elected in the early ages, 279; were nominated 
by the Merovingian French kings, and by the 
emperors ot Germany of the house of Saxony, ib., 
and 7iote ; in England were appointed in the wit- 
tenagemot before the conquest, and afterward by 
consent of parliament, ib; in France received 



investiture from the Emperor Charlemag:ne, 280 , 
bishops of Rome elected by the citizens and con- 
firmed by the emperors, ib. ; not allowed to ex- 
ercise their functions until confirmed by the 
popes, 285 ; papal encroachments on the freedom 
of episcopal elections, 294 ; right of to a seat in 
parliament considered, 355; have a riglit to be 
tried by the peers, ib., note ; had a right to vote 
in capital cases, though that right is now abro- 
gated by non-claim and contrary precedents, 356, 
note. 

Boccanegra (Simon), elected the first doge of Ge 
noa, 171. 

Bocland, nature of, 329; analogy between it and 
freehold land, ib. ; to what burdens subject, 330. 

Bohemia, account of the constitution of, 243 ; no- 
tice of the kings of the house of Luxembourg, 
ib. ; war with the Hussites in that country, 244. 

Bologna university, account of, 524. 

Bond of fellowship, abstract of a curious one, 363, 
note. 

Boniface (St.), the apostle of Germany, devotion of 
to the see of Rome, 272. 

Boniface VIII. (pope), character of, 301; his ois- 
putes with Edward L, king of England, 302 ; and 
with Philip the Fair, king of France, ib. ; is ar- 
rested by him, 304 ; his death, ib. ; the papal 
power declines after his decease, ib. 

Books, scarcity of, in the dark ages, 460 ; account 
of the principal collections of, 543; notices of 
early printed books, 549. 

Booksellers, condition of, during the middle ages, 
542, note. 

Boroughs, cause of summoning deputies from, 370 ; 
nature of prescriptive boroughs, 406, 407 ; power 
of the sheriff to omit boroughs, 407, 408 ; reluc- 
tance of boroughs to send members, 408 ; who 
the electors in boroughs were, 409. 

Bourgeoisies, how distinguished from communities, 
117, note. 

Braccio di Montone, rivalry of, with Sforza, 185. 

Brethren of the White Caps, insurrection of, 464. 

Bretigni, peace of, 43; rupture of it, 45. 

Britany (dutchy of), state of, at the accession of 
Charles VIII. to the throne of France, 62 ; Anne, 
dutchess of Britany, married by Charles VIII. of 
France, 63. 

Britons (native), reduced to slavery by the Saxons, 
322. 

Bruges, state of, in the fourteenth century, 475. 

Burgesses, state of, in Aragon, 218; in England, 
363 ; charters of incorporation granted to them, 
364, 305 ; were first summoned to parliament in 
the 49lh of Henry III., 366; whether St. Albans 
sent representatives before that time, 367 ; or 
Barnstaple, 368; causes of summoning burgess 
es, 370 ; rates of their wages, and how paid, 408. 

Burgesses, why and when chosen to serve in par- 
liament, 406, 407. 

Burgundy and Orleans, factions of, 49 ; the Duke 
of Orleans murdered by the faction of Burgun- 
dy, ib. ; civil wars between the parties, ib. ; as- 
sassination of the Duke of Burgundy, 50. 

Burgundy (house of), its vast acquisitions, 58; 
character and designs of Charles, duke of Bur- 
gundy, 59; insubordinationof the Flemish cities, 
part of his territory, ib. 

C. 

Calais (citizens of), their wretchedness, 43, Twte; 
treaty of, ib. 

Calixtines, account of, and of their tenets, 244. 

Calixcus II. (pope), concordat of, respecting inves- 
titures, 283. 

Canon law, origin and progress of, 290. 

Capet (Hugh), ascends the throne of France, 24 ; 



INDEX 



553 



antiquity of this family, ib., note; state of the 
covintry at that time, ib. ; extent of his dominion 
and power, 26, 27. 

Capitular elections, when introduced, 284. 

Caraccioli, the favourite of Joanna, queen of Na- 
ples, 189; assassinated, 190, note. 

Carlovmgian dynasty, accession of, to the throne 
of France, 17 ; decline of this family, 24. 

Castile (kmgdom of), when founded, 199; finally 
united with the kingdom of Leon, 201 ; civil dis- 
turbances of Castile, 203; reign of Peter the 
Cruel, 203, 204 ; of the house of Trastamare, 
204 ; reign of John II., ib. ; of Henry IV., 205 ; 
constitution of Castile, 206 ; succession to the 
crown, ib. ; national councils, ib. ; admission of 
deputies from towns, ib. ; spiritual and temporal 
nobility in cortes, 207 ; right of taxation, 208 ; 
control of the cortes over the expenditure, 210 ; 
forms of the cortes, 211 ; their rights in legisla- 
tion, ib. ; other rights of the cortes, 212 ; council 
of Castile, 213 ; administration of justice, ib. ; 
violent actions of some of the kings of Castile, 
214; confederacies of the nobility, 215; union 
of Castile with Aragon, 225; papal encroach- 
ments restrained in that kingdom, 314. 

Castles, Roman, traces of in Britain, 488 ; descrip- 
tion of the baronial castles, ib. ; successive im- 
provements in them, ib. ; account of castellated 
mansions, 489. 

Castruccio Castracani, notice of, 151. 

Catalonia (principality), government of, 224, 225; 
state of its commerce and manufactures, 480. 

Catharists, tenets and practices of, 506. 

Caursini, a tribe of money dealers, notice of, 484, 
note. 

Cavalry, practice of, to dismount in action, 183. 

Centenarius, or hundredary, functions of, 107. 

Ceorls, condition of, under the Anglo-Saxons, 321 ; 
identity of them with the vdlani and bordarii of 
Domesday Book, 322. 

Corda (Dominic de), justiciary of Aragon, intrepid 
conduct of, 222 ; and of Juan de Cerda, 222, 223. 

Charlemagne (king of France), conquers Lombar- 
dy, 20; part of Spain, ib. ; and Saxony, 21 ; ex- 
tent of his dominions, ib. ; his coronation as em- 
peror, ib. ; character, 22 ; legislative assemblies 
held by him, 97 ; account of the scheme of juris- 
diction established by him, 107 ; established pay- 
ment of tithes in France, 263 ; vigorously main- 
tained the supremacy of the state over the church, 
267 ; could not write, 459, and 7iote ; established 
public schools, 523. 

Charles IV. (king of France), 39. 

Charles the Fat (king of France), insolent treat- 
ment of, by Pope John VIII., 277. 

Charles V. (king of France), restores that country 
from her losses, 46 ; expels the English thence, 
ib. 

Charles VI., accession of, to the throne of France, 
46 ; state of the country during his minority, 47 ; 
gross misapplication of the revenue, 48 ; reme- 
dial ordinance of, 105 ; assumes the full power, 
48 ; his derangement, ib. ; factions and civil wars, 
49 ; calamitous state of France during the re- 
mainder of his reign, 50, 51 ; his death, 52. 

Charles VII., accession of, to the throne of France, 
52; character of, 53 ; engages Scottish auxilia- 
ries at a high rate, 52, 53 ; retrieves his affairs, 
54 ; is reconciled to the Duke of Burgundy, ib. ; 
state of France during the latter part of his reign, 
55 ; subsequent events of his reign, 55, 56 ; states- 
general convoked by him, 105; his pretensions 
upon Italy, 196. 
Charles VIII. ascends the throne of France, 62 ; 
marries the Dutchess of Britany, 63 ; and con- 
solidates France into one great kingdom, ib. ; his 
pretensions to the kingdom of Naples, 196, 197. 



Charles the Bad (king of Navarre), unprincipled 
character and conduct of, 42. 

Charles (count of Anjou), conquers Naples and 
Sicily, 149 ; aspires to the kingdom of Italy, ib. ; 
rebellion of Sicily against him, 186; war in con- 
sequence, 187. 

Charles IV. (emperor of Germany), reign of, 236 ; 
account of the golden bull issued by him, ib. 

Charles (duke of Burgundy), character of, 59; in- 
subordination of his Flemish subjects, ib. ; his 
ambitious projects, 60 ; invades Swisserland, and 
IS twice defeated, ib. ; his death, ib. ; his dutchy 
of Burgundy claimed by Louis XL, ib. 

Chartered towns, when first incorporated in France, 
116; their privileges, 116, 117, notes; causes of 
their incorporation, 117; circumstances attend- 
ing the charter of Laon, ib. ; extent of their priv- 
ileges, 118; their connexion with the King of 
France, ib. ; independence of the maritime towns, 
119 ; account of the chartered towns or commu- 
nities in Spain, 200 ; progress of them in Eng 
land, 362—365 ; particularly London, 365, 366. 

Charters of the Norman kings, account of, 340 ; 
abstract of Magna Charta, 341, 342; confirma- 
tion of charters by Edward I., 354. 

Chatelains, rank of, 87. 

Chaucer, account of, 541 ; character of his poetrj', 
ib. 

Chief justiciary of England, power and functions 
of, 345, note. 

Children, crusade of, 463, note. 

Childeric III., king of France, deposed by Pepin, 
and confined in a convent, 20. 

Chimneys, when invented, 491. 

Chilperic (king of the Franks), literature of, 458. 

Chivalry, origin of, 509 ; its connexion with feudal 
services, 611 ; that connexion broken, ib. ; effects 
of the crusades on chivalry, ib. ; connexion of 
chivalry with religion, ib. ; and with gallantry, 
512 ; the morals of chivalry not always the most 
pure, 513 ; virtues deemed essential to chivalry, 
514; resemblance between chivalrous and east- 
ern manners, 515; evils produced by the spirit 
of chivalry, ib. ; circumstances tending to pro- 
mote it, 516 ; regular education, ib. ; encourage- 
ment of princes, ib. ; tournaments, 516, 517 ; 
privileges of knighthood, 517 ; connexion of 
chivalry with military services, 518 ; decline of 
chivalry, 519. 

Christianity, embraced by the Saxons, 21. 

Chroniclers (old English), notice of, 540. 

Church, wealth of, under the Roman empire, 261 ; 
increased after its subversion, 261, 262; some- 
times improperly acquired, 262 ; when endowed 
with tithes, 263, 264 ; spoliation of church prop- 
erty, 264 ; pretensions of the hierarchy in the 
ninth century, 268. 

Church lands, exempted from ordinary jurisdic- 
tion, 108. 

Cinque Ports, represented in parliament in 1246, 
367, note. 

Circles instituted in Germany, and why, 242. 

Civil law, revival of, 520; cultivated throughout 
Europe, 521 ; its influence on the laws of France 
and Germany, ib. ; its introduction into England, 
522; the elder civilians Httle regarded, ib. ; the 
science itself on the decline, ib. 

Civil wars of the Lancastrians and Yotktsts, 447 ; 
did not materially aft'rct national prosperity, 478. 

Classic authors neglected by the church during the 
dark ages, 453, 542 ; account of the revival of 
classical literature, 542; causes that contributed 
to its diffusion, 542—544 ; efforts of Cesar Bar- 
das in reviving classical literature in Greece, 547, 
note. 
Clement V. (pope), removes the papal court to 
Avignon, 304. 



§54 



INDEX. 



Clement VII. (pope), contested election of, 308. 

Clergy, state of, under the feudal system, 68 ; their 
wealth under the Roman empire, 261 ; increased 
after its subversion, 2G1, 262 ; sometimes improp- 
erly acquired, 262 ; sources of their wealth, 263 ; 
spoliation of church property, 264 ; extent of 
their jurisdiction, 265 ; their political power, 266 ; 
were subject to the supremacy of the state, espe- 
cially of Charlemagne, 267 ; pretensions of the 
hierarchy in the ninth century, 268 ; corruption 
of their morals in the tenth century, 277 ; neglect 
of celibacy, 278 ; their simony in the eleventh 
century, 282 ; taxation of them by the popes, 296 ; 
state of ecclesiastical jurisdiction in the twelfth 
century. 297; immunities claimed by the clergy, 
298 ; endeavours made to repress ecclesiastical 
tyranny in England, 299 ; were less vigorous in 
France, 300 ; restraints on alienations in mort- 
main, 301 ; ecclesiastical jurisdiction restrained, 
316 ; originally had a right to sit in the house of 
commons, 389, note ; ignorance of the clergy du- 
ring the dark ages, 460 ; their vices, 467, 468. 
See also Bishops, Popes. 

Clovis, king of the Franks, invades and conquers 
Gaul, 17 ; embraces Christianity, 18 ; his victo- 
ries, ib. ; his descendants, ib. ; their degeneracy, 
19 ; they are deposed by Pepin, 20 ; provincial 
government of the French empire during the 
reign of Clovis, 67 ; his limited authority, 68. 

Coin, changes in. the value of, 497—500. 

Coining of money, a privilege of the vassals of 
France, 93 ; regulations of various sovereigns 
concerning this right, ib. 

Combat (trial by), in what cases allowed, 109 ; how 
fought, 110 ; decline of this practice. 111, 112. 

Comines (Philip de), his character of Louis XI., 62. 

Commendation (personal), origin and nature of, 74 ; 
distinguished from feudal tenure, ib. 

Commerce, progress of, in Germany, 474 ; of Flan- 
ders, ib. ; of England, 475, 476—478 ; the Baltic 
trade, 477 ; commerce of the Mediterranean Sea, 
479. 

Commerce (foreign), state of, in the dark ages, 473. 

Commission of reform, in the reign of Richard II., 
proceedings of, 385—387. 

Commodian, a Christian writer of the third centu- 
ry, specimens of the versification of, 457, note. 

Common law (English), origin of, 347, 348. 

Common Pleas, court of, wjfien instituted, 347. 

Commons. See House of Commons. 

Communities, when first incorporated in France, 
116; their progress, 116, 117; in Spain, 116, 117, 
note, 200 ; in England, 364, 365, and 7iotes. 

Commutation of penances, 4C8, 469. 

Companies of ordonnance, instituted by Charles 
VII., 56, 122, 123; their design, 56. 

Compass. See Mariner's Compass. 

Compositions for murder, antiquity of, 94, note; 
prevailed under the feudal system, 66. 

Concordats of Aschaffenburg, account of, 313, 314. 

Condemnation (illegal), instances of, rare in Eng- 
land, 428, 429. 

Condottieri or military adventurers in Italy, notice 
of, 181,182. 

Conrad I., emperor of Germany, 227. 

Conrad II., surnamed the Salic, elected emperor, 
128,228; edict of, 74. 

Conrad III. elected emperor, 230. 

Conrad IV., accession of, to the imperial throne, 
143 ; his death, ib. 

Conradin (son of Conrad IV., king of Naples), cru- 
elly put to death by Charles, count of Anjou, 149. 
Conscription (military), oppressive under Charle- 
magne, 21. 
Consolato del Mare, a code of maritime laws, ori- 
gin and date of, 481, 482, note. 
Constable of England, jurisdiction of, 225, 22G. 



Constance (council at), proceedings of, 309—311. 

Constantinople, situation and state of, in the sev 
enth century, 254 ; captured by the Latins, 256; 
recovered by the Greeks, 257 ; its danger from 
the Turks, 259 ; its fall, ib. ; alarm excited by it 
in Europe, 259, 260. 

Constitution of France, 97, 114; of Castile, 206 
215; of Aragon, 218, 219; of Germany, 235, 236, 
240, 243 ; of Bohemia, 243 ; of Hungary, 245 • 
of Switzerland, 247—249 ; of England, during the 
Anglo Saxon government, 318 — 332 ; Anglo-Nor- 
man constitution of England, 332 — 346; on the 
present constitution of P-ngland, 354—450. 

Continental wars of English sovereigns, eii'ects of, 
on the English constitution, 429, 430. 

Copyholders, origin of, 437. 

Corruption of morals in the clergy in the tenth cen- 
tury, 277. 

Corruption of the Latin language, observations on, 
454, 455. 

Cortes of Aragon, powers of, 224. 

Cortes of Castile, constitution of, 206 ; deputies 
when admitted from towns, ib. ; spiritual and 
temporal nobility in cortes, 207 ; their control 
over expenditure, 210 ; forms of the Castilian 
cortes, 211 ; their rights in legislation, ib. ; other 
rights of the cortes, 212. 

Corvinus. See Mathias Corvinus. 

Councils (ecclesiastical), of Lyons, 142, 231 ; of 
Frankfort, 272 ; of Pisa, 309 ; of Constance, 309 
—311 ; of Basle, 311, 312; considerations on the 
probable effects of holding periodical ecclesiasti- 
cal councils, 312. 

Councils (national and political) : — powers of the 
royal council of the third race of French kings, 
98,112; of Castile, 207— 213; jurisdiction of the 
ordinary council of the kings of England, 419 — 
422. 

Counsellors ofparliament, how appointed in France, 
114. 

Counts Palatine, jurisdiction of, 108 ; their juris 
diction in England, 352, 353, note. 

Counts of Paris, power of, 24 ; rank and power of 
the provincial counts, 67 ; this office originally 
temporary, ib., note ; their usurpations, 72. 

Counties, division of (in England), its antiquity, 
323 ; jurisdiction of county courts, 324 ; process 
of a suit in a county court, ib. ; importance of 
these courts, 325 ; representatives of counties, by 
whom chosen, 406; county elections badly at- 
tended, 410 : the influence of the crown upon 
them, 410, 411. 

Cours pleniSres, or parliaments, when held in 
France, 99 ; business transacted in them, ib. 

Court-baron, jurisdiction of, 352, note. 

Court of peers, when established in France, 112. 

Courts of justice in England, under the Norman 
kings : — the king's court, 315 ; the exchequer, 
346 ; of justices of assize, ib. ; the court of com- 
mon pleas, 347. 

Cross-bow, when introduced, 183. 

Crown, succession to, in Castile, 206 ; of Aragon, 
218 ; among the Anglo-Saxons, 320 ; hereditary 
right to, when established in England, 349 ; cases 
of dispensing power, claimed and executed by 
the English kings, 395 ; influence of, on county 
elections, 410, 411. 

Crusade against the'Albigeois, 29 ; the first crusade 
against the Saracens, or Turks, 31, 255; means 
resorted to to promote it, 32; its result, 33 ; the 
second crusade, 34 ; the third crusade, 35 ; the 
two crusades of St. Louis, ib. ; another attempt- 
ed by Pope Pius, 260 ; crusade of children in 
1211, 463, 7iotc ; immorality of the crusaders, 469 ; 
their effects on chivalry, 511. 

Curia Regis and Curia Parium, not different from 
the Concilium Regium, 98 note. 



INDEX. 



555 



D. 

Damascus, account of the khalifs of, 252. 

Dante, sketch of the life of, 535 ; review of his po- 
etical character, 535, 536 ; popularity of his Di- 
vine Comedy, 537 ; its probable source, ib., note. 

Dauphin6 (province of), historical notice of, 63, note. 

Decanus, functions of, 107. 

Decretals forged in the name of Isidore, 273, 274, 
and note. 

Decretum of Gratian, notice of, 290. 

Degeneracy of the popes in the ninth century, 277. 

Degradation of morals in the dark ages, 502, 503. 

Denina's Rivoluzioni d'ltalia, observations on, 125, 
note. 

Depopulation of England by William the Con- 
queror, 354. 

Diet of Roncagiia, 133; proceedings of the diet of 
Worms, 240, 241 ; remarks thereon, 283 ; diet of 
Frankfort, established the independence of the 
German empire, 305. 

Dispensations of marriage, a source of papal power, 
292, 293 ; dispensations granted by the popes from 
the observance of promissory oaths, 293, 294. 

Dispensing power of the crown, instances of, 395. 

Disseisin, forcible remedy for, 432, note. 

Dissensions, sanguinary, in the cities of Lombardy, 
146, 147. 

Divorce practised in France at pleasure, 292. 

Domain, the term explained, 115, note. 

Dominican order, origin and progress of, 291, 292. 

Duelling, origin of, 462, 463, note. 

Dukes of provinces in France, their rank and power, 
67; their office originally temporary, ib., note; 
their usurpations, 72 ; their progress slower in 
Germany than in France 228 ; partitioned their 
dutchies in Germany, ib. 



Earl, original meaning of, 321, note. 
^ Earl marshal of England, jurisdiction of, 425. 
w Eccelin da Romano, tyranny and cruelty of, 141, 
note. 

Ecclesiastical power, history of, during the middle 
ages. See Clergy, Popes. 

Edessa, principality of, its extent, 33, note. 

Edicts (royal), when registered in the parliament 
of Paris, 113. 

Edward the Confessor, laws of, 340. 

Edward I. (king of England), accession of, 353 ; 
disputes of, with Pope Boniface VIII., 301 ; con- 
firms the charters, 354. 

Edward III. (king of England), unjust claim of, to 
the crown of France, 39 ; prosecutes his claim 
by arms, 40 ; causes of his success, ib. ; charac- 
ter of him, and of his son, ib. ; his resources, 41 ; 
and victories, 41, 42; concludes the peace of 
Bretigni, 43 ; and the treaty of Calais, 44 ; re- 
marks on his conduct, 44, 45 ; renews the wars 
with France, 46; his death, ib. ; dissuaded by 
Pope Benedict Xll. from taking the title and 
arms of France, 40, note ; memorable proceedings 
of parliament in the 50th year of his reign, 379, 
380; by his wise measures promoted the com- 
merce and manufactures of England, 476, 477. 

Edward IV. invades France, 58 ; but is persuaded 
to return, ib. ; character of his reign, 418, 449 ; 
the first monarch who levied benevolences, 449. 

Elections (episcopal), freedom of, papal encroach- 
ments on, 294. 

Elections of members of parliament, contested, 
how determined, 405 ; right of electing knights, 
m whom vested, 406 ; elections of burgesses, 
how anciently conducted, ib. ; irregularity of 
county elections, 410 ; inlluence of the crown 
upon them, 410, 411. 



Electors (seven) of the German empire, their priv- 
ileges, 232, 233 ; their privileges augmented by 
the Golden Bull, 236 

Elgiva, queen or mistress of King Edwy, case of, 
considered, 269, note. 

Emanation, system of, 528, note. 

Emperors of Germany. See Germany. 

Enfranchisement. See Manumission. 

England, effects of the feudal system in, 123 ; arro- 
gant tyranny of the hierarchy there, in the ninth 
century, 269 ; attempts made to depress it, 299, 
300. 

constitution of, during the Anglo-Saxon 

government, 318; sketch of the Anglo-Saxon 
history of England, 318—320; influence of pro- 
vincial governors, 321 ; distribution into thanes 
and ceorls, 321,322; British natives, 322 ; slaves, 
ib. ; the wittenagemot, 322, 323 ; judicial power, 
323 ; division into counties, hundreds, and tith- 
ings, lb. ; county court, and suits therein, 324 ; 
trial by jury, 325 ; law of frankpledge, 327 ; feu- 
dal tenures, whether known in England before 
the conquest, 329—332. 

constitution of, during the Anglo-Norman 



government, 332 ; conquest of England by Will- 
iam, duke of Normandy, ib. ; his conduct at first 
moderate, 333 ; afterward more tyrannical, ib. ; 
degraded condition of the English, ib. ; confisca- 
tion of their property, 334 ; devastation and de- 
population of their country, 334, 335 ; riches of 
the conqueror, 335 ; his mercenary troops, ib. ; 
feudal system established in England, ib. ; differ- 
ence between it and the feudal policy in France, 
336 ; hatred of the Normans by the English, 337 ; 
tyranny of the Norman government, ib. ; exac- 
tions, 338 ; general taxes, ib. ; right of legislation, 
339; laws and charters of Norman kings, 340; 
Magna Charta, 341 ; state of the constitution un- 
der Henry III., 342 ; the king's court, 345 ; the 
court of e.xchequer, 346 ; institution of justices 
of assize, ib. ; the court of common pleas, 347 ; 
origin of the common law, ib. ; character and 
defects of the English law, 348 ; hereditary right 
of the crown established, 349; English gentry 
destitute of exclusive privileges, 350 ; causes of 
the equality among freemen in England, 351. 

on the present constitution of England 



353; accession of Edward I., ib. ; confirmation 
of the charters, 354 ; the constitution of parlia 
ment, 355 ; the spiritual peers, ib. ; the lay peers, 
earls, and barons, 356 ; whether tenants in chief 
attended parliament under Henry III., 358; ori- 
gin and progress of parliamentary representation, 
359 ; whether the knights were elected by free 
holders in general, 300 ; progress of towns, 362, 
towns let in fee-farm, 363 ; charters of incorpo 
ration, 364 ; prosperity of English towns, partic- 
ularly London, 365 ; towns, when first summon- 
ed to parliament, 366; cause of summoning dep- 
uties from boroughs, 370; parliament, when di- 
vided into two houses, 371 ; petitions of parlia- 
ment during the reign of Edward II., 372; sev- 
eral rights established by the commons in the 
reign of Edward III., 373 ; remonstrances against 
levying money without consent, 373, 374 ; the 
concurrence of both houses in legislation neces- 
sary, 376 ; statutes distinguished from ordinances, 
ib. ; advice of parliament required on matters of 
war and peace, 378 ; right of the commons to 
inquire into public abuses, 379; proceedings of 
the parliament in the 50th year of Edward III., 
379, 380 ; great increase of the power of the 
commons in the reign of Richard II., 381,; his 
character, 384 ; proceedings of parliament in the 
10th year of Richard II., 385 ; commission of re- 
form, 385, 386 ; answers of the judges to Rich- 
ard's questions, 38''; subsequent revolution, ib. ; 



556 



INDEX. 



greater harmony between the king and parlia- 
ment, 388 ; disunion among some leadmg peers, 
ib. ; arbitrary measures oC the king, 389, 390; 
tyranny of Richard, 391 ; lie is deposed and suc- 
ceeded by Henry IV., ib. ; retrospect of the pro- 
gress of the constitution under Richard 11., 393 ; 
its advances under the house of Lancaster, ib. ; 
appropriation of supplies, 394 ; attempt to make 
supply depend on redress of grievances, ib. ; le- 
gislative iighis of the commons established, 395 ; 
dispensing power of the crown, ib. ; interference 
of parliament with the royal expenditure, 397 ; 
parliament consulted on all public affairs by the 
kings of England, 399; impeachment of minis- 
ters, 400 ; privilege of parliament, 400, 401 ; con- 
tested elections how determined, 405 ; in whom 
the right of voting for knights vested, 406 ; elec- 
tion of burgesses, ib. ; power of the sheriff to 
omit boroughs, 407 ; reluctance of boroughs to 
send members, 408 ; who the electors in bor- 
oughs were, 409 ; number of members fluctua- 
ting, ib.; irregularity of elections, 410 ; influence 
of the crown upon them, 410, 411 ; constitution 
of the house of lords, 411 ; baronial tenure re- 
quired for lords spiritual, 411,412 ; barons called 
by writ, 412; bannerets summoned to the house 
of lords, 413 ; creation of peers by statute, 415 ; 
and by patent, ib ; clergy summoned to parlia- 
ment, 416; jurisdiction of the king's ordinary 
council, 419 ; character of the Plantagenet gov- 
ernment, 423 ; prerogative, 423, 424 ; its excesses, 
424, 425 ; Sir John Fortescue's doctrine as to the 
English constitution, 426, 427 ; erroneous views 
of Hume respecting the English constitution, 
427 ; instances of illegal condemnation rare, 428 ; 
causes tending to form the constitution, 429 ; its 
stale about the time of Henry VI. 's rei7n, 441 ; 
historical instances of regencies, 441 — 444 ; men- 
tal derangement of Henry II., 444; Duke of York 
made prolector, ib. ; his claim to the crown, 446 ; 
war of the Lancastrians and Yorkists, 447 ; reign 
of Edward IV., 443 ; general review of the Eng- 
lish constitution, 450. 

England.— State of the commerce and manufac- 
tures of England, 475, 470 ; singularly flourishing 
state of its commerce in the reigns of Edward H., 
Richard H., Henry IV. and VJ., and Edward IV., 
478. 

• , increase of domestic expenditure in, du- 
ring the fourteenth century, 486 ; ineflicacy of 
sumptuary laws, 486, 487; state of civil architec- 
ture from the time of the Saxons, 488, 491, 492 ; 
furniture of houses, 491, 492 ; state of ecclesias- 
tical architecture, 492 — 494 ; wretched state of 
agriculture, 495 — 497; civil law, when introdu- 
ced into England, 522; state of literature, 540, 
541. 

English language, slow progress of, accounted for, 
540. 

Enthusiasts, risings of, in various parts of Europe, 
during the dark ages, 463, 404. 

Equality of civil rights in England, causes of, 351, 
352. 

Erigena, a celebrated schoolman, no pantheist, 528, 
note. 

Escheats, nature of, in the feudal system, 80. 

Escuage, nature of, and when introduced, 120 ; not 
to be levied without the consent of parliament, 
342 ; when it became a parliamentary assessment 
in England, 338, 339. 

Esquires, education of, 510. 

Establishments of St. Louis, account of, 110, 111. 

Estates of the realm, number of, determined, 403, 
404, note. 

Ethelwolf established payment of tithes in Eng- 
land, 264, note. 

Europe, state of society in, during the middle ages, 
450, et seq. 



Exactions of the Norman kings of England, 338, 
339. 

Exchequer, court of, when instituted, 346 ; its pow- 
ers and jurisdiction, ib. 

Excommunication, original nature of, 275 ; punish- 
ments and disabilities of excommunicated per- 
sons, ib., and note, 276, note ; greater and lesser 
excommunications, 276 ; burial denied to the ex- 
communicated, lb. 

Expenditure (royal) controlled by the English par- 
liament, 397. 

Expenditure (domestic), increase of, in Italy, du- 
ring the fourteenth century, 485, 486; and in 
England, 480. 



Falconry, prevalence of, 470. 

False decretals of Isidore, 273, 274. 

Fealty, nature of, in conferring fiefs, 76. 

Ferdinand (king of Naples), turbulent reign of, 191. 

Ferdinand (king of Aragon) marries Isabella of 
Castile, and unites the two kingdoms, 225 ; con- 
quers Granada, 225, 226 ; subsequent events of 
his reign, 226. 

Feuds, divided into proper and improper, 81, 82. 

Feudal system, history of, especially in France, 64 ; 
gradual establishment of feudal tenures, 70 — 72 ; 
change of allodial into feudal tenures, 73; cus- 
tom of personal commendation, 73, 74 ; the prin- 
ciples of a feudal relation investigated, 75 ; cere- 
monies of homage, fealty, and investiture, 76 ; 
account of feudal incidents, viz. : — reliefs, 77 ; 
fines on the alienation of lands, 78 ; escheats and 
forfeiture, SO; aids, ib. ; wardship, ib. ; marriage, 
81 ; analogies to the feudal system, 83, 84 ; its 
local extent, 84 ; view of the different orders of 
society during the feudal ages, 85—92 ; privileges 
of the French vassals, 93 ; suspension of legis- 
lative authority during the prevalence of the feu- 
dal system, 96; feudal courts of justice, 109; 
trial by combat, ib. ; causes of the decline of the ^. 
feudal system, 113; especially in France, 115; '* 
the acquisition of power by the crown, ib. , aug- 
mentation of the royal domain, ib. ; the institu- 
tion of free and chartered towns, 116; the con- 
nexion of free towns with the king, 118; the in- 
dependence of maritime towns, ib. ; the commu- 
tation of military feudal service for money, 120 ; 
the employment of mercenary troops, 121; and 
the establishment of a regular standing army, 
122 ; general view of the advantages and disad- 
vantages of the feudal system, 123, 124 ; inquiry 
whether feudal tenures were known in England 
before the conquest, 329 — 332; this system es- 
tablished in England by the Anglo-Norman kings, 
335; difference between the feudal policy in Eng 
land and in France, 336, 337 ; influence of the 
manner in which feudal principles of insubordi- 
nation and resistance were modified by the pre- 
rogatives of the early Norman kings on the Eng- 
lish constitution, 430 — 432 ; instances of the abu- 
ses of feudal rights in England, 424, 425 ; con- 
nexion of the feudal sen'ices with chivalry, 511; 
that connexion broken, ib. 

Fief, essential principles of, 75; ceremonies used 
in conferring a fief, 76 ; nature of fiefs of office, 82. 

Field-sports, passion for, in the dark ages, 470, 471. 

Fines payable on the alienation of lands under the 
feudal system, 78, 79. 

Firearms, when invented, 184 ; improvements in, 
185. 

Firma del derecho, nature of the process of, in the 
law of Aragon, 221, and 7iole. 

Fiscal lands, nature of, 70. 

Flagellants, superstitious practices of, 464. 
Flemings, rebellion of, against their sovereign, 47 

, its causes, ib., note ; their insubordination to the 



INDEX. 



557 



house of Burgundy, 59 ; paid no taxes without 
the consent of the three estates, ib. ; their inde- 
pendent spirit, ib., 7iote ; flourishing slate of their 
commerce and manufactures, 474 ; especially at 
Bruges and Ghent, 475; inducements held out 
to ihem to settle in England, 476, tiote. 

Florence (republic of), reluctantly acknowledges 
the sovereignty of the emperors of Germany, 153, 
note; revolution there in the twelfth and thir- 
teenth centuries, 156; its government, ib. ; the 
commercial citizens divided into companies, or 
arts, ib. ; civil and criminal justice, how admin- 
istered in the thirteenth century, lb. ; change in 
its constitution in the fourteenth century, 157 , 
the gonfaloniers of justice when introduced, 158 ; 
rise of the plebeian nobles, 159 ; Walter de Bri- 
enne, duke of Athens, appointed signior of Flor- 
ence, ;b. ; his tyranny, 160; he abdicates his 
signio:y, ib. ; subsequent revolution in that ciiy, 
160, I'il ; feuds of the Guelfsand Ghibelins. 161, 
162; the tyranny of the Guelfs subverted by a 
sedition of the ciompi or populace, 162, 163; Mi- 
chel de Lando elected signior, 163 ; his wise 
government, ib. ; revolution affected by Alberti 
Strozzi and Scala, 164; acquisitions of territory 
by Florence, 165 ; revenues of the republic, ib. ; 
population, 166, note; conquers Pisa, ib. ; state 
of Florence in the fifteenth century, 192, 193 ; 
rise of the family of Medici, 193. 

Folkland, nature of, 329. 

Forest laws, sanguinary, of William the Conqueror, 
334. 335; jurisdiction of, 425. 

Fortescue (Sir John), doctrine of, concerning the 
constitution of England, 426, 427. 

France, invaded by Clovis, 17 ; his victories, 18 : 
partitions his dominions, ib. ; sketch of the reigns 
of his descendants, 18, 19; their degeneracy, 19 ; 
are held in subjection by the mayors of the pal- 
ace, 19, 69; change in the Merovingian dynasty, 
20 ; accession of Pepin, ib. ; his victories, ib. ; 
reign and exploits of Charlemagne, 20, 21 ; ex- 
tent of his dominions, 21 ; his coronation as em- 
peror, ib. ; his character, 22 ; reign and misfor- 
tunes of Louis the Debonair, 23, 24; decline of 
the Carlovingian family, 24 ; dismemberment of 
the empire, and accession of Hugh Capet, ib. ; 
state of the people at that time, 24, 25; his im- 
mediate successors, 27; reigns of Louis VI., ib. ; 
of Louis VH., 28; of Philip Augustus, 28,29; 
of Louis VIII., 29, 30; of Louis IX., 30, 31, 35, 
36; of Philip the Bold, 36; of Philip the Fair, 
ib. ; aggrandizement of the French monarchy 
under bis reign, 36, 37; of Louis X., 37; and 
Phihp v., ib. ; of Charles IV. and Philip of Va- 
lois, 39; unjust pretensions of Edward III. to 
the throne of France, ib. ; causes of his success 
in war against France, 40; characters of the 
kings Philip VI. and John, 40, 41 ; wretched 
condition of France after the battle of Poitiers, 
42, 43 ; the English lose all their conquests, 46 ; 
state of France during the minority of Charles 
VI., 47 ; his assumption of full regal power, 48 ; 
factions and civil wars, 48 — 50; calamitous state 
of France during the remainder of his reign, 50, 
51 ; invaded by Henry V., 51 ; reign of Charles 
VII., 52 — 54 ; the English lose all their conquests, 
55; state of France during the second English 
wars, 55, 56; reign of Louis XI., 56—62; of 
Charles Vlll., 62—04. 
, constitution of the ancient Frank mon- 
archy, 67 ; limited power of the king, 68 ; grad- 
ual increase of the regal power, ib. ; different 
classes of subjects, ib. ; degeneracy of the royal 
family, 69 ; power of the mayors of the palace, 
19, 69 ; origin of nobility in France, 69 ; and of 
sub-infeudation, 72; usurpation of the provincial 
governors, ib. ; comparative state of France and 



Germany at the division of Charlemagne's em- 
pire, 92 ; privileges of the French vassals, 93, et 
seq. ; legislative assemblies, 96 ; privileges of the 
subjects, 98; royal council of the third race, ib. ; 
occasional assemblies of barons, 99 ; cours plcni- 
eres, ib. ; limitations of the royal power in legis- 
lation, ib. ; first measures of general legislation, 
100; legislative power of the crown increases, 
ib. ; convocation of the states-general by Philip 
the Fair, 101 ; their rights, 102 ; states-general 
of 1355 and 1356, 103; states-general under 
Charles VII., 105; provincial states, 106, 107; 
successive changes in the judicial polity of 
France, 107 — 114; papal authority restrained in 
that country, 314, 315 ; liberties of the French 
church, 315. 

France, state of civil architecture there during the 
middle ages, 490; account of the literature of 
France, 531—534 ; French language why prefer- 
red by the early Italian historians, 535, note. 

Franciscan order, origin and progress of, 291 ; 
schism in, 306, and note. 

Franconia, emperors of the house of, viz., Conrad 
II, 127, 228; Henry 111., 228; Henry IV.. ib. ; 
Henry V., 229 ; extinction of the house of Fran- 
conia, ib. 

Frankleyn, condition of, in England, 429, and note. 

Frankfort, council of, 272 ; remarks on its proceed- 
ings, 273. 

Franks invade Gaul, 17; effects of this invasion, 
65 ; succession of the Frank monarchy, 67. 

Frank-pledge (law of) not invented by Alfred the 
Great, 327 ; origin and progress of, 328, 329. 

Frederick Barbarossa ascends the throne of Ger- 
many, 132, 230 ; ruins Henry the Lion, duke of 
Saxony, 230; invades Lombardy, 132, 133; con- 
quers Milan, 133; violates the capitulation he 
had granted the Milanese, ib. ; defeats them again, 
and destroys their city, 134 ; the league of Lom- 
bardy formed against him, ib. ; is himself defeat- 
ed at the battle of Legnano, 135 ; and compelled 
to acknowledge the independence of the Lom- 
bard republics, ib. 

Frederick II. (emperor), turbulent reign of, 139 — 
142; he IS formally deposed at the council of 
Lyons, 143, 231; consequences of that council, 
231. 

Frederick III. (emperor), reign of, 237 ; his singular 
device, ib., note. 

Free cities of Germany, origin and progress of, 238 ; 
their leagues. 239. 

Freeholders, different classes of, among the Anglo 
Saxons, 321,322; whether the English freehold 
ers in general elected knights to serve in parlia- 
ment, 360—362 ; the elective franchise when re- 
stricted to freeholders of forty shillings per an 
num, 406 ; freeholders in soccage, whether liable 
to contribute towards the wages of knights of 
counties, 408, note. 

Freemen, rank and privileges of, in the feudal sys- 
tem, 88; more numerous in Provence than in 
any other part of France, 116, note ; their privi- 
leges in England under Magna Charta, 342, 
causes of the equality among freemen in Eng- 
land, 351. 

Free towns, institution of, in France, 116; origin 
of them, 117; circumstances attending the char- 
ter of Laon, ib. ; extent of their privileges, 118; 
their connexion with the king, ib. ; the maritime 
towns particularly independent, 119 ; could con- 
fer freedom on runaway serfs, ib., note. 

French language, long prevalence of, in England, 
540, 541 ; why preferred by the early Italian his- 
torians, 535, note. 

Frerage, nature of, 79, 80. 

Friendly society, account of one at Exrter, 364, 
note. 



558 



INDEX. 



Fulk, count of Anjou, saucy reproof of his sover- 
eign by, 459, note. 

Furniture of houses in the fifteenth century, curi- 
ous inventories of 491, 492, and notes. 

G. 

Gallican church, liberties of, 315. 

Gardening, state of, in the fourteenth century, 497 

Gamier (the historian of France), character of, 63, 
64, note. 

Gaul invaded by Clovis, 17; effects of its conquest 
by the Franks, 65 ; condition of the Roman na- 
tives of Gaul, 65, 66. 

Genoa (republic), commercial prosperity of, 167, 
479; war with Venice, 167, 168; decline of her 
power, 169 ; government of Genoa, 170 ; election 
of the first doge, ib. ; subsequent revolutions, 
171 ; state of, in the fifteenth century, 192 ; ac- 
count of the bank of St. George there, 485. 

Gentlemen, rank of, in the feudal system, 85 ; gen- 
tility of blood, how ascertained, ib. ; character 
of, succeeded that of knights, 519, 520. 

Gentry (English) destitute of exclusive privileges 
under the Anglo-Norman kings, 350, 351. 

Germany (ancient), political state of, 64 ; lands 
how partitioned by the Germans in conquered 
provinces, ib. ; fiefs not inheritable by women, 
82, note ; comparative state of France and Ger- 
many at the division of Charlemagne's empire, 92. 

Germany, when separated from France, 227 ; the 
sovereignty of its emperors recognised by the 
cities of Lombardy, 132; election of Conrad I., 
227; election of the house of Saxony, ib. ; of 
Otho I., or the Great, 126, 227; of Henry II., 
127, 228 ; the house of Franconia : — election of 
Conrad II., 128, 228; power of Henry 111., 228 ; 
unfortunate reign of Henry IV., 228, 229; he is 
excommunicated by Pope Gregory VII., 229 ; and 
deposed', ib. ; reign of Henry VI., 231 ; extinction 
of the house of Franconia, and election of Lo- 
thaire, 229 ; house of Swabia : — election of Con- 
rad 111., 230 ; and of Frederick Barbarossa, ib. ; 
he ruins Henry the Lion, duke of Saxony, ib. ; 
defeats the Milanese, 132, 133; violates the ca- 
pitulation, 133; is defeated by the confederated 
cities of Lombardy, 135 ; reign of Philip, 231 ; 
and of Otho IV., 139, 231 ; turbulent reign of 
Frederick II., 139 — 142; he is formally deposed 
at the council of Lyons, 142,231 ; consequences 
of that council, 231 ; accession and death of 
Conrad IV., 143; relation of the emperors with 
Italy, 172, 173; grand interregnum, 232 ; Rich- 
ard, earl of Cornwall, chosen emperor, ib. ; his 
character, ib. ; state of the Germanic constitution 
at this time, 232—234 ; election of Rodolph, 
count of Hapsburg, 234 ; his character, ib. ; he 
invests his son Albert with the dutchy of Austria, 
ib. ; state of the empire after the death of Ro- 
dolph, 235 ; reigns of the emperors of the house 
of Luxembourg, Henry VII. and Charles IV., 
236; golden bull of Charles IV., ib. ; deposition 
of Wenceslaus, 236, 237 ; accession of the house 
of Austria, 237 ; reign of Albert II., ib. ; of Fred- 
erick III., lb.; progress of free imperial cities, 
238; their leagues, 239 ; provincial states of the 
empire, ib ; alienation of the imperial domain, 
239, 240 ; accession of Maximilian, and the diet 
of Worms, 240 ; establishment of public peace, 
ib. ; institution and functions of the imperial 
chamber, 241,242 ; establishment of circles, 242 ; 
of the aulic council, ib. ; limits of the empire, 
243 ; account of the constitution of Bohemia, 
ib. ; of the kingdom of Hungary, 244, 245; of 
Swisserland and its confederacy, 246 — 249 ; em- 
perors of Germany anciently confirmed the elec- 
tion of popes, 280 ; their election afterward claim- 



ed to be confirmed by the popes, 286, 289 ; inde- 
pendence of the empire established at the diet of 
Frankfort, 305. 

Ghent, state of, in the fourteenth century, 475 ; its 
population, ib., note. 

Ghibelins (faction of), origin of, 2.30 ; formed to 
support the imperial claims against the popes, 
138, 139 ; duration of this faction, 139, ?iote ; their 
decline, 149, 150; and temporary revival, 151. 

Giano della Bella, change efiiected by, in the gov- 
ernment of Florence, 158. 

Giovanni di Vicenza, character and fate of, 148. 

Glass windows, when first used, 491. 

Godfrey of Boulogne, king of Jerusalem, notice of, 
33, 34, and note. 

Gold passed chiefly by weight in the first ages oJ 
the French monarchy, 93. 

Golden Bull, account of the enactments of, 236. 

Gothic architecture, origin of, 493, 494, and notes. 

Grand sergeantry, tenure by, explained, 82, note. 

Gratian's Decretum, account of, 290. 

Greece, state of literature in, during the fifteenth 
century, 546, 547. 

Greek language unknown in the west of Europe 
during the dark ages, with a few exceptions, 545 ; 
its study revived in the fourteenth century, 545, 
546. 

Greek provinces of southern Italy, state of, m the 
ninth and tenth centuries, 128. 

Greek empire, state of, at the rise of Mahometan- 
ism, 251, 252 ; its revival in the seventh century, 
254 ; crusades in its behalf against the Turks, 
255 ; progress of the Greeks, 256 ; conquest of 
Constantinople by the Latins, ib. ; partition of 
the Greek empire, 257 ; the Greeks recover Con- 
stantinople, ib. ; declining state of the Greek 
empire, 257, 258 ; danger of Constantinople from 
the Turks, 259 ; its fall, ib. ; alarm excited by it 
in Europe, 259, 260. 

Gregory of Tours (St.), pious falsehoods of, 463, 
and 7iote. 

Gregory I. (pope), manoeuvres of, to gain power, 
271 ; established the appellant jurisdiction of the 
see of Rome, ib., and note. 

Gregory VII. (Hildebrand), pope, differences of, 
with the emperor, Henry IV., 281 ; excommuni- 
cates and deposes him, 229,282; his humiliating 
treatment of the emperor, 282 ; driven from Rome 
by Henry IV., 283; and dies in exile, ib. ; his 
general conduct considered, 285, 286. , 

Gregory XII. (pope), contested election of, 308, 
309 ; deposed at the council of Pisa, 309. 

Guardianship in chivalry, nature of, 80. 

Guelfs, faction of, origin of the name, 230 ; support 
of the claims of the papal see, 138, 139 See 
Ghibelins. 

GuescUn (Bernard du), character of, 46. 

Guiennc, insurrection in, 56; its cause, ib., note. 

Guilds or fraternities, under the Anglo-Norman 
government, account of, 364, and note. 

Guiscard (Robert), conquests of, in Italy, 129. 

Guiscard (Roger) conquers Sicily, 129; is created 
by Pope Innocent II. king of Sicily, ib. 

Gunpowder, when and by whom invented, 184, and 
note. 

H. 

Hanseatic union, origin of, 239, 477 ; its progress, 
478. 

Hapsburg, emperors of the house of: — Rodolph, 
234 ; his successors, 235 ; Albert II., 237 ; Fred- 
erick HI., ib. 

Hastings (lord), a pensioner of France, 58. 

Hawkwood (Sir John), an English military adven- 
turer, account of, 181 ; military tactics improved 
by him, ib 



INDEX. 



559 



Haxey (Thomas), prosecuted by Richard II. for 
proposing an obnoxious bill in parliament, 389 ; 
and condemned for high treason, ib. ; his life why 
spared, ib., and note; his judgment afterward re- 
versed, ib., tiote. 
Henry II. elected emperor of Germany, 127, 228. 
Henry III. (emperor of Germany), power of, 228. 
Henry IV. (emperor of Germany), unfortunate reign 
of, 228, 229 ; difi'erences of, with Pope Gregory 
VII., 281 ; he is e.vcommunicated and deposed, 
229, 282 ; his deep humiliation, 282 ; drives the 
pope into exile, 283. 
Henry V. (emperor of Germany), reign of, 229 ; 
compromises the question of ecclesiastical inves- 
titures with Calixlus, 283. 
Henry VII. (emperor of (Germany), reign of, 236. 
Henry I. (king of England), laws of, not compiled 

till'the reign of Stephen, 348. 
Henry III. (king of England), state of the constitu- 
tion during his reign, 342—344 ; imprudently ac- 
cepts the throne of Sicily for his son Edmund, 
344 ; subsequent misery of his kingdom, ib. ; the 
royal prerogative limited during his reign, 345 ; 
the commons first summoned to parliament in his 
reign, 366—369. 
Henry (duke of Hereford), quarrel of, with the 
Duke of Norfolk, 391 ; banished for ten years, ib. ; 
deposes Richard II., ib. ; and ascends the throne 
of England by the title of 
Henry 1 V., 392 ; claitus the throne by right of con- 
quest, ib. ; reflections on his conduct, 392, 393 ; 
memorable petition of the house of commons to 
him, 396 ; his reply, ib. ; his expenditure con- 
trolled by the house of commons, 397, 398. 
"Henry V., character of, at his accession to the Eng- 
lish throne, 399 ; invades France, 51 ; gains the 
battle of Azincourt, ib., and notes; his further 
progress, ib. ; treaty of Troyes, ib. 
Henry VI., accession of, to the English throne, 52 ; 
causes of the success of the English, ib. ; disas- 
trous events of his reign, 441 ; his mental de- 
rangement, 444 ; Duke of York made protector, 
ib. ; deposed, 447. 
Henry the Lion (duke of Saxony), fall of, 230. 
Henry, count of Trastamare (king of Castile), reign 

of, 204. • 
Henry IV. (king of Castile), reign of, 205. 
Heptarchy (Saxon), notice of, 319. 
Heraldic devices, origin of, 85, 86, and note. 
Heresy, statute against, in the fifth of Richard II., 

not passed by the house of commons, 395. 
Heriots of the Anglo-Saxons, equivalent with the 

feudal reliefs, 331. 
Hierarchy, papal encroachments on, 274. 
Hilary (bishop of Aries) deposed by Pope Leo, 271, 

note. 
Hildebrand, archdeacon of Rome, character of, 281 ; 

elected pope, ib. See Gregory V[I. 

Homage, ceremony of, 76 ; difference between 

homage per peragium and liege homage, ib. note ; 

and between liege homage and simple homage, ib. 

Homme de pooste, synonymous to villein, 88, 89, 

and note. 
House of Commons, when constituted a separate 
house, 371 ; knights of the shire, when first cho- 
sen for, 358—360; and by whom, 3C0— 362 ; bur- 
gesses, when summoned, 366—309 ; how elect- 
ed, 406 ; causes of their being summoned, 370, 
371 ; proper business of the house, 371, 372 ; pe- 
tition for redress of grievances in the reign of 
E.dward II., 372; their assent pretended to the 
deposition of Edward II., 373; establish several 
rights during the reign of Edward III., ib. ; re- 
monstrate against levying money without con- 
sent, 373, 376 ; their consent necessary in legis- 
lation, 376 ; their advice required in matters of 
war and peace, 378, 379 ; their right to inquire 



into public abuses, 379 ; great increase of theit 
power during the minority of Richard il., 381 ; 
account of their remonstrances, 381—383 ; re- 
flections on their assumption of power during his 
reign, 384 ; request the king to appoint a com- 
mission of reform, 385, 386 ; remarks on this pro- 
ceeding, 386, 387 ; claim the right of granting 
and appropriating supplies, 394 ; attempt to make 
supply depend on redress of grievances, ib. ; le- 
gislative rights of this house established, 395; 
resist infringements of that right, 395, 396 ; be- 
gan to concern themselves with petitions to the 
lords or to the council in the reign of Henry V., 
397; interfere with the royal expenditure, ib. ; 
consulted on all public affairs, 399 ; impeach the 
king's ministers for malfeasance, 400 ; establish 
the privilege of parliament, 400, 401 ; and the 
right of determining contested elections, 405, 406 ; 
fluctuations in the number of its members, 409. 

House of Lords, constituent members of :— spirit- 
ual peers, 355 ; lay peers, earls, and barons, 356, 
357; when formed into a separate house, 371; 
their consent necessary in legislation, 376 ; their 
advice required in questions of war and peace, 
378, 379; claimed a negative voice in questions 
of peace, 379 ; declared that no money can Le 
levied without the consent of parliament, 393. 

Houses (English) chiefly built with timber, 483; 
when built with bricks, ib. ; meanness of the or- 
dinary mansion-houses, 489, 490; how built in 
France and Italy, 490. 

Hume (Mr.), mistakes of, concerning the English 
constitution, corrected, 427, 428, and note, 429. 

Hundreds, division of, 323, 324 ; whether they com- 
prised free families rather than free proprietors, 
324. 

Hungarians, ravages of, in France and Germany, 25. 

Hungary, sketch of the history of, 244, 245 ; reigns 
of Sigismund and Uladislaus, 245 ; of Ladislaus 
and the regency of Hunniades, ib. ; of Matthias 
Corvinus, 246. 

Hungerford (Sir Thomas), speaker of the house of 
commons, 381. 

Hunniades (John), regent of Hungary, account of, 
245, ?iote ; and of his administration, ib. ; his 
death, ib. 

Huss (John), remarks on the violation of his safe 
conduct, 312, note. 

Hussite war in Bohemia, account of, 244. 

Hussites of Bohemia, tenets of, 508, 509. 

I. 

Ignorance prevalent in Europe in consequence of 
the disuse of Latin, 459, 460. 

Imilda de' Lambertazzi, melancholy fate of, 147. 

Immunities claimed by the clergy, 298; attempts 
to repress them in England, 299, 300 ; less vig- 
orous in France, 300, 301. 

Imperial chamber, origin, powers, and jurisdiction 
of, 241, 242. 

Impeachment (parliamentary), first instance of, in 
Lord Latimer, 385 ; of the Earl of Suffolk, ib. ; 
of ministers, when fully established, 400. 

Imperial cities of Germany, origin and progress of, 
238, 239 ; account of the leagues formed by them. 
239. 

Imperial domains, alienation of, 239, 240. 

Incidents (feudal). See Aids, Escheats, Fines. 
Marriages, Reliefs, Wardships. 

Innocent III. (pope), character of, 137; conquers 
the ecclesiastical state, 138; the league of Tus- 
cany formed to support the claims of the see of 
Rome, ib. ; success of, 287; his extraordinary 
pretensions, ib. ; sometimes exerted his influence 
beneficially, 288 . instances of his tyranny, 288, 
289. 



60 



INDEX. 



insurance (marine\ why permitted, 485, note. 

interdicts (papal), origin and effects of, 276. 

Interest of money, high rates of, 483, 484. 

Investitures, different kinds of, 76 ; nature of eccle- 
siastical investitures, 280 ; contests respecting 
such investitures between the popes and empe- 
rors of Germany, 281. 282; these disputes com- 
promised by the concordat of Calixtiis, 283 ; simi- 
lar termination of these disputes in England, 284. 

Isidore, false decretals of, 273, 274, and notes. 

Italy, northern part of, invaded by the Lombards, 
20; history of Italy from the extinction of the 
Carlovingian emperors to the invasion of Naples 
by Charles VIII., 125 ; state of that country after 
the death of Charles the Fat, at the close of the 
ninth century and the former part of the tenth, 
125, 126; coronation of Otho the Great, 126; in- 
ternal state of Rome, ib. ; Henry II. and Ardoin, 
127; election of Conrad II., 128; Greek provin- 
ces of Southern Italy, ib. ; settlement of the Nor- 
mans at Aversa, ib. ; conquests of Robert Guis- 
card, 129 ; papal investitures of Naples, ib. ; prog- 
ress of the Lombard cities, ib. ; their acquisi- 
tions of territory, 131 ; their mutual animosities, 
132; sovereignty of the emperors, ib. ; Frederick 
Barbarossa, ib. ; diet of Roncaglia, 133 ; capture 
and destruction of Milan, 134 ; league of Lom- 
bardy against Frederick, ib. ; battle of Legnano, 
135; peace of Constance, ib. ; affairs of Sicily, 
136; Innocent III., 137; bequest of the Countess 
Matilda, ib. ; ecclesiastical state reduced by In- 
nocent III., 137, 138; league of Tuscany, 138; 
factions of the Guelfs and Ghibelins, ib. ; reign 
of Otho IV., 139 ; of Frederick II., ib. ; his wars 
with the Lombards, 140, 141 ; arrangement of 
the Lombard cities, 141 ; council of Lyons, 142 ; 
accession of Conrad IV., 143; causes of the suc- 
cess of the Lombard cities, ib. ; their internal 
governments, 144 ; and dissensions, 146 ; notice 
of Giovanni di Vicenza, 148 ; state of Italy after 
the extinction of the house of Swabia, 149 ; con- 
quest of Naples by Charles, count of Anjou, ib. ; 
decline of the Ghibelin party, 149, 150 ; the Lom- 
bard cities become severally subject to princes or 
usurpers, 150, 151 ; the kings of Naples aim at 
the command of Italy, 151 ; relations of the em- 
pire with Italy, 152; cession of Romagna to the 
popes, 153; internal state of Rome, 153 — 155; 
state of the cities of Tuscany, especially of Flor- 
ence, 156—166; and of Pisa, 166; state of Ge- 
noa, 167; and of Venice, 167 — 177; state of 
Lombardy at the beginning of the fifteenth cen- 
tury, 177, 178 ; wars of Milan and Venice, 178 ; 
change in the military system of Italy, ib. ; mer- 
cenary soldiers and military adventurers employ- 
ed, 178—181; schoolof Italian generals, 181, 182; 
defensive arms of the Italian armies in the fif- 
teenth century, 182—184; change m the mili- 
tary system of Europe by the invention of gun- 
powder, 184; rivalry of Sforza and Braccio, 185, 
180; affairs of Naples, 186; rebellion of Sicily 
against Charles of Anjou, ib. ; Robert, king of 
Naples, 187; disputed succession to the throne, 
and the civil wars in consequence, 187, 188 ; state 
of Italy in the latter part of the fifteenth century, 
192: rise of the family of Medici, 193 ; Lorenzo 
de' Medici, 194 ; pretensions of France upon Na- 
ples, 196 ; decline of the papal influence in Italy, 
317,318; increase of domestic expenditure du- 
ring the fourteenth century, 485,480; state of 
domestic manners during the same period, 487 ; 
state of agriculture, 496, 497 ; and gardening, 
497 ; state of Italian literature, 534—539. 



Jacquerie (or peasantry), insurrection of, 43. 



Janizaries, account of the institution of, 2C0. 

Jerusalem, kingdom of, military force of, 34 ; sub- 
verted by Saladin, 34, 35 ; singular custom there 
relative to the marriage of vassals, 81. 

Jews, exactions from, by the kings of France, 95 ; 
their usury, ib. ; ordinance against them, 100 ; 
expelled from France, 95; persecutions of the.m 
in the dark ages, 468, 484 ; account of their money 
dealings, 484, 485; causes of their decline, 484. 

Joanna (queen of Naples) suspected of murdering 
her husband Andrew, 167; her unhappy reign, 
188 ; deposed and put to death, ib. 

Joanna II. (queen of Naples), 189; adopts Alfonso 
of Aragon for her successor, ib. ; revokes the 
adoption in favour of Louis of Anjou, 190 ; her 
death, ib. 

John (king of England) loses Normandy, 28, 29 ; 
his exactions and tyranny, 341, and jwte ; the 
great charter of liberties extorted from him, ib. ; 
abstract of its provisions, 341, 342. 

John (king of France), character of, 40, 41 ; con- 
cludes the treaty of Calais, 43, 44. 

John II. (king of Castile), reign of, 204. 

John of Luxembourg, cruelty of, 55. 

John of Procida successfully plots the rebellion of 
Sicily from Charles of Anjou, 186. 

John VIII. (pope), insolent conduct of, to Charles 
the Fat, king of France, 277 ; pretends a right 
of choosing the emperor, ib. 

Jubilee, when first celebrated at Rome, 302 ; its 
origin and nature, ib., note. 

Judges, answers of, to certain questions proposed 
by Richard II., 387; punished for the same by 
parliament, ib. ; their answers pronounced to be 
just and legal by a subsequent parliament, 390. 

Judicial polity of France, successive changes of, 
107 ; original scheme of jurisdiction in the time 
of Charlemagne, ib. ; this supplanted by the feu- 
dal territorial jurisdiction, 108 ; its divisions and 
administration, 109 ; trial by combat, ib. ; estab 
lishments of St. Louis, 110; royal tribunals, and 
progress of their jurisdiction. 111 ; royal council 
or court of peers, 112; parliamentof Paris, 112— 
114. 

Jurisdiction (ecclesiastical), progress of, 265 ; arbi 
trative, ib. ; coercive over the clergy in civil mat 
ters, ib. ; and also in criminal suits, 266 ; its rapid 
progress in the twelfth century, 297, 298; re 
strained in the fourteenth century, 316 ; accoun' 
of some particular territorial jurisdictions ip 
England, 352, 353, note. 

Jury, origin and progress of trial by, among ths 
Anglo-Saxons, 325—327. 

Jurisfirma. See Firma de derecho. 

Justice (administration of) in Castile, 213, 214 ; fre- 
quently violated by some of the kings, 214. 

(in England), venal, under the Norman 

kings, 337—339 ; prohibited to be sold by Magna 
Charta, 342. 

Justices of assize, when instituted, 346 ; their func- 
tions, ib. 

Justiciary of Aragon, office of, when instituted, 
220; his power, 220 — 223; duration of his office, 
223; responsibility of this magistrate, ib. 

Justinian's institutes and pandects universally stud- 
ied, 521, 522. 

K. 

Karismians invade Asia, 257. 

Khalifs of Damascus, account of, 252 ; of Bagdad, 

252, 253. 
Kings of Aragon, power of, limited, 218, 219. 
King's court in England, jurisdiction and powers 

of, 345, 346 ; what offences cognizable there, 352 

353, note. 
Kings of France, anciently elected, 97 ; their reve- 



INDEX. 



561 



nues, 94—96; their limited power, 68; especially 
in legislation, 99 ; gradual increase of their pow- 
er, 68 ; legislative assemblies held by them, 96 ; 
royal council of the kings of the third race, 98 ; 
cours pI6nieres held by them, 99 ; subsequent in- 
crease of the legislative power of the crown, 100 ; 
states-general convoked by various kings, 101 — 
107 ; royal tribunals established by them, 111; 
progress of them, 112 ; augmentation of their do- 
mains, 115. 

Knighthood, privileges of, 517. 

Knights banneret, and knights bachelors, 518, 519. 

Knights, when summoned to parliament, 359, 360 ; 
whether elected by freeholders in general 360, 
361. 

Knights of shires, by whom chosen for parliament, 
406 ; amount of their wages, and how paid, 407, 
408. 

Knights' fees, divisions of lands into, invented by 
William the Conqueror, 77, note ; their value, ib. 

Knights-templars, institution of the order of, 35 ; 
their pride and avarice, ib. ; the kingdom of Ara- 
gon bequeathed to them, 201. 

L. 

Labourers, hired, when first mentioned in the Eng- 
lish statute-book, 438 ; their wages regulated, 
ib. ; were sometimes impressed into the royal 
service, 424 ; better paid in England in the four- 
teenth century than now, 500, 501. 

Lancaster (house of), progress of the EngUsh con- 
stitution under, 393—410. 

Lancastrians, civil wars of, with the Yorkists, 447. 

Lances, mode of reckoning cavalry by, 179. 

Lands, possession of, constituted nobility in the 
empire of the Franks, 69, 70 ; inalienable under 
the feudal system, without the lord's consent, 78 ; 
partition of, in Gaul, &c., 64 ; in Germany, 235; 
descent of lands in England during the Anglo- 
Saxon and Anglo-Norman kings, 347. 

Lands. See Allodial, Salic, and Fiscal, Benefices, 
Alienation. 

Landwehr, or insurrectional militia, antiquity of, 
120, note. 

Languedoc, affairs of, in the twelfth century, 29 ; de- 
vastated by the crusade against the Albigeois, ib. 

Laon, circumstances attending the charter of, 117, 
118. 

Latimer (lord), the first person impeached by par- 
liament, 385, 386. 

Latin language, the parent of French, Spanish, and 
Italian, 454 ; its extent, ib,, note ; its ancient pro- 
nunciation, 454, 455; corrupted by the populace, 
455 ; and the provincials, ib. ; its pronunciation 
no longer regulated by quantity, 457 ; change of 
Latin into Romance, 458 ; its corruption in Italy, 
459 ; ignorance consequent on its disuse, 459, 460. 

Latins, conquests of, in Syria, 33 ; decline of the 
Latin principalities in the east, 34. 

Laura, the mistress of Petrarch, account of, 538, 
539, and notes. 

Law-books (feudal), account of, 82, 83. 

Laws, distinctions of, in France and Italy, 66, 67 ; 
of the Anglo-Norman kings, 340 ; character and 

• defects of the English laws, 348, 349. See Feu- 
dal, Ripuarian, and Salique Law. 

League of the public weal formed in France, 57 ; 
of Lombardy, 134; of Tuscany, 138; quadruple 
league of 1455, 191 ; of the free imperial cities of 
Germany, 239. 

Learning. See Literature. 

Legates (papal), authority of, 286 ; insolence of, ib. 

Legislation (general), first measures of, in France, 
100. 

Leg-islation, right of, in the Norman kings of Eng- 
land, 339. 
Nn 



Legislative assemblies, original, in France, 96 ; 
held by Charlemagne, 97 ; mode of proceeding 
at them, ib. ; royal council of tlie kings of the 
third race, 98 ; occasional assemblies held by the 
barons, 99 ; states-general convoked by Philip 
the Fair, 101 ; states-general of 1355 and 1356, 
103 ; states-general under Charles VII., 105 ; pro- 
vincial states, 106 ; states-general of Tours, 106, 
107. 

Legislative authority in France, substitutes for, 99 ; 
of the crown, increase of, 100. 

Leon (kingdom of), when founded, 198 ; finally um 
ted with that of Castile, 201. 

Liberi homines, whether different from thaini, 321, 
note. 

Liberties of England purchased by money rather 
than with the blood of our forefathers, 430. 

Liberty of speech claimed by the house of com- 
mons, 402. 

Libraries, account of the principal, in the four 
teenth and fifteenth centuries, 543, and notes. 

Linen paper, when and where invented, 542, 543 
and nofe. 

Literature, causes of the decline of, in the latter 
period of the Roman empire, 451 ; neglect of 
heathen literature by the Christian church, 453 , 
the spread of superstition, ib. ; inroads of the bar- 
barous nations, 453, 454; corruption of the Latin 
language, 454 ; ignorance consequent on the dis- 
use of Latin, 459 ; want of eminent literary men, 
461 ; literature preserved by religion, ib. ; influ- 
ence of literature in the improvement of society 
considered, 520; civil law, ib. ; public schools 
and universities, 523 ; scholastic philosophy, 526 ; 
cultivation of the new languages, 529, 530 ; po- 
etical character of the troubadours, 530 ; north- 
ern French poetry and prose, 531 ; Norman ro- 
mances and tales, 532 ; Spanish language and 
literature, 534 ; Italian literature, ib. ; English 
literature, 540; revival of ancient learning, 542 ; 
state of learning in Greece, 546 ; literature not 
much improved beyond Italy, 548 ; promoted by 
the invention of printing, .548, 549. 

Liveries anciently given to the retainers of noble 
families, 432, 433, note. 

Lollards, tenets and practices of, 508. 

Lombards, invade Italy, 20 ; reduce the exarchate 
of Ravenna, ib. ; are defeated by Pepin, king of 
France, ib. ; their kingdom conquered by Charle- 
magne, ib. 

Lombard bankers, account of, 484, 485. 

Lombard cities, progress of, towards republics, 129 
— 131 ; their acquisitions of territory, 131 ; their 
mutual animosities, 132 ; recognised the nominal 
sovereignty of the emperors of Germany, ib. ; the 
league of Lombardy formed, 134; the confedera- 
ted cities defeat the Emperor Frederick Barba- 
rossa, 135 ; secure their liberties by the peace of 
Constance, ib. ; arrangement of the Lombard 
cities according to the factions they supported, 
141, 142 ; causes of their success, 143 ; their 
population, ib. ; mode of warfare which then ob- 
tained, 144 ; their internal government, 144—146; 
and dissensions, 146—148; Lombard cities be- 
come severally subject to princes or usurpers, 
150 ; state of Lombardy in the middle of the four- 
teenth century, 151, 152; and at the beginning 
of the fifteenth century, 177. 

Longchamp (William), bishop of Ely, banished 
from England by the barons, 341. 

London, state of, before the Norman conquest, 365 ; 
power and opulence of its citizens subseqgent to 
that event, 305, 366 ; conjectures respecting its 
population in the fourteenth century, 366, note. 

Lord and vassal, mutual duties of, 75 ; consent of 
the lord necessary to enable a vassal to alienate 
lands, 78. 



562 



INDEX. 



Lords. See House of Lords. 

Lothaire, elected emperor of Germany, 229, 230 ; 
excommunicated by Pope Gregory IV., 275; ab- 
solved by Adriari II., ib. 

Louis of Bavaria (emperor of Germany), contests 
of, with the popes, 304, 305. 

Louis the-Debonair, ascends the throne of France, 
23 ; his misfortunes and errors, 23, 24 ; partitions 
the empire among his sons, 24. 

Louis IV. (king of France) reproved for his igno- 
rance, 459, note. 

Louis VI., reign of, 27. 

Louis VII., reign of, 28. 

Louis VIll., conquers Poitou, 29; takes the cross 
against the Albigeois, ib. ; ordinance of, against 
the Jews, 100. 

Louis IX. (St.), reign of, 30; review of his charac- 
ter — its excellences, ib. ; defects, 31 ; supersti- 
tion and intolerance, :b. ; his crusades against the 
Turks, 35 ; his death, ib. ; account of his estab- 
lishments, 110, HI ; provisions of his pragmatic 
sanction, 295. 

Louis X., short reign of, 37 ; state of France at his 
death, ib. 

Louis XI., character of, 56, 57 ; crushes the less 
powerful vassals, 57, 58 ; avoids a war with Eng- 
land, 58 ; claims the succession of Burgundy, 60 ; 
his conduct on this occasion, 60, 61 ; sickness 
and wretched death, 61 ; instances of his super- 
stition, CI, note, and 62. 

Louis (duke of Anjou) invades Naples, 188. 

Lower classes, improvements in the condition of, 
502. 

Luxembourg, emperors of the house of, Henry VII., 
236; Charles IV., ib.; Wenceslaus, 236, 237. 

Lyons, council of, depose the emperor Frederick II., 
142, 143 ; consequences of that council, 231, 232. 

M. 

Madox (Mr.), theory of, on the nature of baronies, 
357 ; observations thereon, 357, 358. 

Magna Charta, notice of the provisions of, 341, 342 ; 
confirmed by various sovereigns, 343. 

Mahomet II. captures Constantinople, 259. 

Maintenance of suits, 432. 

Mandats (papal), nature of, 294, 295. 

Manorial jurisdiction, extent and powers of, 352, 
353, note. 

Manichees, tenets of, 503 ; their tenets held by the 
Alhigenses, 504, 505, and notes. 

Manifestation, nature of the process of, in the law 
of Aragon, 221, 222, and notes. 

Manners (domestic) of Italy in the fourteenth cen- 
tury, 480, 487 ; France and Germany, 487 ; re- 
semblance between chivalrous and oriental man- 
ners, 515. 

Manufactures, state of, in the middle ages, 472 ; of 
Flanders, 474 ; of England, 476 ; of the northern 
provinces of France, 477; of Germany, ib. ; of 
Italy, 479, 480. 

Manumission of serfs or slaves, progress of, 90, 91 ; 
and of villeins in England, 440. 

Manuscripts, transcription of, in the fifteenth cen- 
tury promoted the revival of literature, 544 ; in- 
dustry of Petrarch, Poggio, and others in finding 
and copying them, ib. 

Marc (St.), observations on the Italian history of, 
125, note. 

Margaret (queen of Henry VI.), violent conduct of, 
446. 

Mariner's compass, when and by whom invented, 
481, and notes. 

Maritime laws during the middle ages, account of, 
481—483. 

Marriage, custom relative to, in the feudal system, 
81 ; prohibited to the clergy, 278 ; but continued. 



especially in England, in defiance of the papal 
prohibitions, ib. ; account of the papal dispensa- 
tion of marriage, 292 ; within what degrees pro- 
hibited, ib. 

Marshal. See Earl Marshal. 

Martel (Charles), king of France, defeats the Sara- 
cens, 19. 

Martin V. (pope) dissolves the council of Con- 
stance, 310. 

Mary (the Virgin), superstitious devotion to, 465, 
466, and notes. 

Maryof Burgundy, territories of, claimed by Louis 
XL, 60; his conduct towards her, 60, 61 ; mar- 
ries Maximilian of Austria, 61. 

Matthias Corvinus (king of Hungary), reign of, 240. 

Matilda (countess), bequest of, to the see of Rome, 
137. 

Maximilian (emperor of Germany), reign of, 240 — 
242. 

Mayors of the palace of the French kings, their 
power, 19, 69. 

Medici family, rise of, 193 ; Cosmo de' Medici, the 
first citizen of Florence, ib. ; his administration, 
194; government of Lorenzo de' Medici, ib. ; his 
character, 195; and government, 195, 190. 

Mediterranean, origin of English trade with, 473, 
and note; nature of the intercourse between the 
Mediterranean traders and England, 479 ; ac- 
count of the principal trading towns on the Med- 
iterranean, ib. 

Members of parliament, wages of, and how paid, 
407, 408; numbers of, irregular, 409, 410. See 
also Election, Privilege of Parliament. 

Mendicant orders, origin and progress of, 291 ; a 
chief support of the papal supremacy, 291, 292. 

Mercenary troops, when first employed, 121 ; em- 
ployed both in the French and English armies, 
122 ; their wages, ib., note ; employed by the Ve- 
netians, 178 ; and other states of Italy, 178, 179 ; 
account of the "companies of adventure" formed 
by them, 180; Italian mercenary troops formed 
in the fourteenth century, 182; employed by the 
republics of Florence and Venice, ib. 

Merchants, encouragements given to, by Edward 
III., 476; instances of their opulence, 478. 

Merovingian dynasty, successions of, 18 ; their de- 
generacy, 19 ; deposed by the mayors of the pal- 
ace, ib. 

Middle ages, the term defined, 451. 

Milan, civil feuds in, 151 ; finally subdued by the 
Visconti, ib. ; erected into a dutchy, 152; wars 
of the dukes of Milan with the republic of Ven- 
ice, 178 ; is conquered by Francisco Sforza, 185. 

Milanese, refused to acknowledge bishops whom 
they disliked, 130, and note ; their city besieged 
and captured by Frederick Barbarossa, 133 ; who 
violates the capitulation he had given them, ib. ; 
they renew the war, are defeated, and their city 
destroyed, 133, 134. 

Military orders, when instituted, 201 ; account of 
those instituted in Spain, ib. 

Military service, limitations of, under the feudal 
system, 77 ; who were excused from it, ib. ; rates 
of pecuniary compensation established for default 
of attendance, ib. ; military service of feudal ten- 
ants commuted for money, 120 ; connexion of 
military services with knighthood, 518. 

Ministers of the kings of England impeached by 
parliament, 400. 

Miracles (pretended) of the church of Rome, 465; 
mischiefs arising from, ib. 

Missi regii, functions of, 108, and note. 

Mocenigo (doge of Venice), dying advice of, to hi» 
countrymen, 177. 

Moguls of Timur, incursions of, 258. 

Mahomet, first appearance of, 249; causes of his 
success, 249, 250 ; principles of the religion taught 



INDEX. 



563 



by him, 249—251 ; conquests of his followers, 

Monarchy (French), how far anciently elective, 

97, 98. ^ 

Monasteries, mischiefs of, 466, 467; ignorance and 

jollity their usual characteristics, 543, note. 
Money, privilege of coining, enjoyed by the French 
vassals, 93 ; little money coined except for small 
payments, ib., note ; regulations of various kings 
concerning the exercise of this privilege, ib. ; the 
right of debasing money claimed by Philip the 
Fair, lb., and note ; debasing money a source of 
the revenue of the kings of France, 95, 96. 

Money, levying of, in England, prohibited without 
the consent of parliament, 393, 394 ; changes in 
the value of, 497—500. 

Money-bills, power of originating, vested in the 
house of commons, 402, 404. 

Monks, not distmguished for their charity in the 
dark ages, 466, note ; their vices, 467, 468 ; im- 
morality of the monkish historians, 468, note. 

Montfort (Simon de). character of, 29. 

Moors of Spain, gradually lose their conquests in 
that country, 198-201; their expulsion, why 
long delayed, 202. 

iMorals, degraded state of, in the dark ages, 469, 
470 ; improved state of the moral character of 
Europe towards the close of that period, 501 ; the 
morals of chivalry not always the most pure, 513. 

Mortmain, alienations of land in, restrained, 301. 

Muratori, observations on the historical works of 
125, 126, notes. ' 

Murder, commuted for pecuniary consideration in 
the feudal system, 06; when made capital, ib., 
note; antiquity of compositions for murder, 94, 
note. 



N. 

Naples, investiture of the kingdom of, conferred by 
the popes, 129; conquered by Charies of Anion, 
149; disputed succession to the throne on the 
death of Charies II., 187; murder of Andrew, 
king of Naples, ib. ; reign of Joanna, 187, 188 ; 
Naples invaded by Louis, duke of Anion, 188 • 
reign of Ladislaus, 189 ; of .Joanna II.. ib. ; she 
adopts Alfonso of Aragon for her heir, ib, ; re- 
vokes the appointment, and adopts Louis of An- 
jou, 190 ; Alfonso of Aragon, kingof Naples, ib. ; 
he is succeeded by his son Ferdinand, 191 ; pre- 
tensions of Charles VIII. upon the kingdom of 
Naples, 196, 197. 

Navarre (kingdom oP), when founded, 198. 

New Forest, devastated by William the Conqueror, 
334. 

Nicolas IL (pope), decree of, respecting the elec- 
tion of pontiffs, 281. 

Nobility (Aragonese), privileges of, 218. 

Nobility, origin of, in France, 69 ; was founded on 
the possession of land or civil employment, 69, 
70; different classes of, 85, 86; their privileges, 
86, 93, et seq. ; how communicated. 85; letters 
of nobihty when first granted, 87 ; different orders 
of, lb.; pride and luxury of the French nobility, 
43, note. 

:; (Castilian), confederacies of, for obtaining 

redress of grievances, 215. 

(English), influence of, from the state of 

manners, 432 ; patronised robbers, 433, 434. 

(German), state of, in the thirteenth cen- 
tury, 234. 

Norfolk (Mowbray, duke oO, quarrel of, with the 
Duke of Hereford, 391 ; banished for life, ib 

Normans, ravages of, in Kngland and France, 25 

26 ; finally settled in the province of Normandy' 

26; settlement of at Aversa, in Italy, 128; they 

conquer Apulia and Sicily, 129; account of the 

N n3 



Norman romances and tales, 532 ; effects of the 
Norman conquest on the English langua^^e, 540 
Normandy (dukes of), their pride and power 28 • 
this provincfe conquered by Philip Augustus' 
king of France, ib. 

0. 

Oleron, laws of, 482. 

Ordeal, trial by, in use in the time of Henry I , king 
of England, 347, and note. 

Ordinances, in what respects different from stat- 
utes, 376, 377. 

Orieans, siege of, by the English, 53 ; raised by 
Joan of Arc, ib. ; her cruel death, ib. 

— — , duke of, murdered by the Duke of Burgun- 
dy, 49 ; civil wars between the two factions, 49, 
50. 

Otho the Great elected emperor, 126, 227 

IV., reign of, 139, 231. 

Ottoman dynasty, account of, 258. 

Oxford University, account of, 524. 

P. 

Palestine, accounts of the crusades against, 31— 36 
Pandects, whether discovered at Amalfi, 520. 
Papal power. See Popes. 

Paper Irom linen, when and where invented, 542 
543, and note. ' 

Paper credit, different species of, 484, note. 
Papyrus, manuscripts written on, 460, 461, and 

note. 
Parchment, scarcity of, 460, 461. 
Pardons, anciently sold by the English kings, 433, 

4.34, and note. 
Paris (counts of), their power, 24. 

(city), seditions at, 47, 104; subdued by 

Charies VI., 47. ^ 

(university of), account of, 523. 

Pariiaments, or general meetings of the barons, in 

England and France, account of, 99. 
Pariiament (English), constitution of, 355; spirit- 
ual peers, ib. ; lay peers, 356 ; origin and prog- 
ress of parliamentary representation, 359, 300 ; 
parliament, when divided into two houses, 371 ; 
petitions of pariiament in the reign of Edward 11.^ 
372, 373; the concurrence of both houses of par- 
hament necessary in legislation, 376: proceed- 
ings of the English pariiament in the tenth year 
of Richard II., 385 ; interference of parliament 
with the royal expenditure, 397; consulted by 
the kings of England on all public affairs, 399 ■ 
privilege of pariiament, 400, 401. See House of 
Commons and House of Lords. 
Parhament of Paris, when instituted, 112; prog- 
ress of its jurisdiction, 113; royal edicts when 
enregistered in it, ib. ; counsellors of parliament, 
how appointed, 114; notice of some provincial 
parliaments, 114, 115, note. 
Pariiament Rolls of Henry VII., inaccuracy of, con- 
sidered, 449, note. 
Partition of lands in Gaul, «S,:c., how made, 64, 65; 

effects of, in Germany, 235. ♦■ 
Pastoureaux (a sect of enthusiasts), insurrection 

of, 464. 
Patriarchate of Rome, extent of, 270. 
Patrician, rank and office of, in France, 67. note. 
Patronage, encroachments of the popes on the right 

of, 294. 
Paulicians, tenets and practices of, 503, 504, and 

notes. 
Peace, conservators of. (heir office, 434. 
Peasantry (Aragonese), state of, 218. 
Peasantry (English), nature of their villanage, and 

its gradual abolition, 435—441. 
Peers of England (spiritual), right of, to a seat in 



564 



INDEX. 



parliament considered, 355, 356, and notes ; nom- 
inate a protector during the mental derangement 
of Henry VI., 444, 445. 

Peers (lay), how created, 415 ; their right to a seat 

in parliament, 355 — 358. 
Peers of France, the twelve, when established, 1 13. 

Pembroke (William, earl of), his reason for making 
an inroad on the royal domains, 431. 

Penances, commutations of, 468, 469. 

Pepin, raised to the French throne, 20 ; conquers 
the exarchate of Ravenna, which he bestows on 
the pope, ib. 

Pestilence, ravages of, in 1348, 42 ; its progress in 
other countries, 42, 43, note. 

Peter the Cruel, king of Castile, reign of, 203, 204. 

Peter the Hermit, preaching of, 32. 

Peter de la Mare, speaker of the house of commons, 
381. 

Petition, memorable, of the house of commons to 
King Henry IV., 398. 

Petrarch, mistake of, corrected, 155, note ; caressed 
by the great, 537, 538 ; review of his moral char- 
acter, 538 ; his passion for Laura considered, 
538, 539, and note ; character of his poetry, 539. 

Pfahlburger, or burgesses of the palisades, who 
they were, 239. 

Philip Augustus (king of France), character of, 28 ; 
conquers Normandy, ib. ; royal courts of justice 
first established by him. 111. 

Philip III. (king of'France), reign of, 36 ; war of, 
with the King of Aragon on the succession to Si- 
cily, 187. 

Philip the Fair, or IV. (king of France), 36 ; ag- 
grandizement of the French monarchy during his 
reign, 36, 37 ; is defeated by the Flemings at the 
battle of Courtray, 37 ; regulations of, concern- 
ing the coining of money by the vassals of France, 
93, and 7iote ; debased the coin of his realm, 95; 
states-general convoked by him, 101 ; represen- 
tations of the towns first introduced by him, 101, 
102, and note ; his probable motives in taking this 
step, 102 ; his disputes with Pope Boniface VIII., 
302, 303 ; causes him to be arrested, 304. 

VI. (king of France), character of, 40, 41 ; 

his title disallowed by Edward III., 41, and note. 

Pickering (Sir James), speaker of the house of 
commons, protest of, in the name of the house, 
381. 

Piers Plowman's vision, character of, 501. 

Pilgrimages, mischiefs of, 469. 

Piracy, frequency of, 482. 

Pisa (republic), naval power of, 166 ; conquers Sar- 
dinia, lb. ; defeated by the Genoese, 167 ; falls 
under the dominion of Florence, ib. ; account of 
her commercial prosperity, 479, 480. 

(council at), proceedings of, 309. 

Pius II. (pope), character of, 260, ?to<e ; endeavours 
to raise a crusade against the Turks, ib. 

Podesta, power of, in the free Lombard cities, 145 ; 
how appointed, 145, 146. 

Poetry of the troubadours, account of, 530; of 
Northern France, 531 ; of the Normans, 532, 
533 ; of the Italians, 534—5.39. 

Poggio BracciOni, successful researches of, in 
finding ancient manuscripts, 544. 

Pole (Michael de la, earl of Suffolk), impeached by 
the English parliament, 385. 

Police, state of, improved towards the close of the 
dark ages, 502. 

Polygamy obtained in France during the reign of 
Charlemagne, 292, and note. 

Popes, commencement of their power, 269 ; patri- 
archate of Rome, 270; their gradual assumption 
of power, ib. ; character of Gregory I., 271 ; false 
decretals ascribed to the early popes, 273 ; en- 
croachments of the popes on the hierarchy, 274 ; 
and upon civil governments, 274, 275 ; excom- 



munications, 275 ; interdicts, 276 ; further usur- 
pations of the popes, 276, 277 ; their degeneracy 
in the tenth century, 277 ; corruption of morals, 
ib. ; neglect of the rules of celibacy, 278 ; simony, 
279 ; investitures, 280 ; imperial confirmation of 
popes, ib. ; decree of Nicolas II., 281 ; character 
of Hildebrand, or Gregory VII., ib. ; his differ- 
ences with the Emperor Henry IV., ib. ; com- 
promised by a concordat of Calixtus, 283 ; gen- 
eral conduct of Gregory VII., 285; authority of 
the papal legates, 286 ; Adrian IV., ib. ; Innocent 
III., 287 ; his extraordinary pretensions, ib. ; the 
supremacy claimed by the popes, supported by 
promulgating the canon law, 290; by the mendi- 
cant orders, 291 ; by dispensations of marriage, 
292 ; and by dispensations from promissory oaths, 
293, 294 ; encroachments of the popes on tlie free- 
dom of ecclesiastical elections, 294; by mandats 
or requests for the collation of inferior benefices, 
ib. ; by provisions, reserves, «kc., 295"; their tax 
ations of the clergy, 296; disaffection thus pro- 
duced against the church of Rome, 297 ; disputes 
of Boniface VIII. with the King of England, 302 ; 
and of France, ib. ; contest of popes with Louis 
of Bavaria, 304 ; spirit of resistance to papal 
usurpations, 305 ; rapacity of the Avignon popes, 
306 ; return of the popes to Rome, 307, 308 ; con- 
tested election of Urban VI. and Clement VII., 
308; of Gregory XII. and Benedict Xlil., 308, 
309 ; both deposed by the council of Pisa, 309 ; 
John XXIII. deposed by the council of Constance, 
ib. ; real designs of these councils as they re- 
spected the popes, 310; council of Basle, 311; 
concordats of Aschaffenburg, 313,314; papal en- 
croachments on the church of Castile, 314; 
checks on the papal authority in France, ib. ; 
their usurpations checked in the Galilean church, 
ib. ; decline of the papal influence in Italy, 317, 
318. 

Population of the free cities of Lombardy during 
the middle ages, 143, 144 ; of Aragon, 2i9, note ; 
of Florence, 166, note; of London, 365, note ; of 
Bruges, 475. 

Poulains, or mongrel Christians of Syria, 34, note. 

Pragmatic sanction of St. Louis, provisions of, 295 

Prerogative (royal), defined, 423, 424 ; limited in 
England during the reign of Henry III., 345; no- 
tice of its abuses, 424, 425. 

Priests, rapacity of, in the dark ages, 467, 468. 

Principalities (petty) in Germany, origin of, 235. 

Printing, account of the invention of, 548 ; notices 
of early printed books, 549. 

Private war, right of, a privilege of the vassals of 
France, 93, 94; attempts of Charlemagne and 
other sovereigns to suppress it, ib. ; prevails in 
Aragon, 225 ; and in Germany, 240; suppressed 
by the diet of Worms, ib. ; was never legal in 
England, 352. 

Privilege of parliament, when fully established, 
400—405. 

Privilege of union in Aragon, account of, 219 ; when 
abolished, 220. 

Privileges of knighthood, 517. 

Promissory oaths, dispensations of, granted by the 
popes, 293, 294. 

Pronunciation of the Latin language, 454 — 459. 

Protests in parliament, when first introduced, 378. 

Provence (county of), historical notice of, 63, note ; 
account of the troubadours of, 530. 

Provincial governors, influence of, in England du- 
ring the Anglo-Saxon government. 321. 

Provincial states in France, 106 ; in the German 
empire, 239. 

Provisions (papal), notice of, 295. 

Provisors (statute of), observations on, 312, 313. 

Purveyance, a branch of the ancient royal preroga- 
tive in England, 424 • its abuses, ib. 



INDEX. 



565 



R. 

Rapacity of the Avignon popes, 306. 

Rapine, prevalent habit of, in England, during the 
middle ages, 433. 

Ravenna (exarchate of), conquered by the Lom- 
bards, 20 ; reconquered by Pepin, and conferred 
upon the pope, ib. 

Raymond VI., count of Toulouse, disasters of, 29, 
30. 

Redress of grievances, attempted to be made a con- 
dition of granting supplies by the house of com- 
mons, 394. 

Regency in England, historical instances of, 441 ; 
during the absences of the kings in France, ib. ; 
at the accession of Henry III., ib. ; of Edward I., 
ib. ; and Edward III., 442 ; of Richard II., ib. ; 
of Henry VI., 442— 445. 

Regency in France, right of the presumptive heir 
to, 48, note. 

Reliefs, origin of, 77, 78 ; their nature, 78 ; and 
value, ib. ; equivalent to the heriots of the Anglo- 
Saxons, 331. 

Religion, contributed to the preservation of litera- 
ture during the dark ages, 461, 462 ; connexion 
of, with chivalry, 511. 

Representation (parliamentary), origin and prog- 
ress of, 359 ; a probable instance of, m the reign 
of William the Conqueror, ib.; a more decided 
example in the fifteenth year of John, 359, 360 ; 
another in the ninth year of Henry III., 360 ; and 
in the thirty-eighth of Henry III., ib. ; especially 
in the forty-ninth of Henry III., ib. ; burgesses 
and citizens, when first summoned to parliament, 
366, 367 ; causes of summoning them, 370. 

Reprisal, law of, 482. 

Retainers, custom of having, in noble families, 
432. 

Revenues of the church, under the Roman empire, 
261 ; increased after its subversion, 261, 262 ; 
were sometimes improperly acquired, ib. ; other 
sources of revenues — tithes, 263. 

Revenues of the kings of France, sources of, 94 ; 
augmented by exactions from the Jews, 95 ; by 
debasing the coin, ib. ; direct taxation, 96 ; of the 
various sovereigns of Europe in the fifteenth cen- 
tury, 192, note. 

Revolution in England, of 1399 and 1683— parallel 
between, 392, 393. 

Richard I. (Coeur de Lion), crusade of, 35 ; refused 
to abolish the right of private war, 94, note. 

Richard II., disputes between, and the parliament 
of England, 381 — 384 ; sketch of his character, 
384 ; acquires more power on his majority, ib. ; 
proceedings of parliament in the tenth year of 
his reign, 385 ; appoints a commission of reform, 
385, 386 ; wretched state of the country daring 
his reign, 386 ; remarks on the conduct of the 
king, 386, 387 ; answers of the judges to certain 
questions proposed by him, 387 ; subsequent rev- 
olution, lb. ; greater harmony between the king 
and parliament, 388 ; disunion among the lead- 
ing peers, ib. ; prosecution of Haxey for propo- 
sing in the house of commons an obnoxious libel, 
389 ; arbitrary measures of the king, 389, 390 ; 
appoints a commission to sit after parliament had 
been dissolved, 390 ; tyranny of Richard, 391 ; 
necessity for deposing him, ib. ; retrospect of the 
progressof theconstitution under Richard II., 393. 

Richard (earl of Cornwall), elected emperor of 
Germany, 232 ; his character, ib. 

Richard (duke of York), made protector of Eng- 
land during the mental derangement of Henry 
VI., 444 ; claims the crown, 446 ; civil wars of 
the Lancastrians and Yorkists, 447. 

Richemont (the count de). retrieves the affairs of 
France, 53 54. i 



Ricos hombres, oi great barons of Aragon, privileges 
of, 218. 

Rienzi (Nicola de), revolution effected by, at Rome, 
154, 155; his death, 155. 

Ripuary law, difference between it and the Salique- 
law, 65. 

Robbery, when made a capital offence in France, 
66, note ; prevalence of, in England, 433 ; robbeis 
there frequently purchased pardons, 433, 434. 

Rochelle, fidelity of the citizens of, to the King of 
France, 45. 

Rodolph, count of Hapsburg, elected Emperor of 
Germany, 234 ; invests his son with the dutchy 
of Austria, ib. ; state of the empire after his 
death, 235. 

Romagna, province of, ceded to the popes, 153. 

Roman empire, subversion of, 17 ; partitioned among 
various barbarous nations, ib. ; state of the church 
under the empire, 261 ; causes of the decline of 
learning in it, 451—460. 

Roman de la Rose, account of, 533. 

Romance language, gradual change of Latin into, 
458; divided into two dialects, 529, 530; account 
of the Provengal dialect, 530 ; and of the French 
or northern romance dialect, 531. 

Rome, state of, at the close of the ninth century, 
126, 127 ; internal state of, in the middle ages, 
153, 154 ; power of the senators, 154; re.volution 
effected there by the tribune Rienzi, ib. ; subse- 
quent affairs of, 155. 

(bishops of), nature of their primacy, 269, 270 ; 

orfginally were patriarchs, 270. See Popes. 

Roye (town), singular clause in the charter of, 119, 
7iote. 

S. 

Salique-law, whether it excluded women from the 
throne of France, 38 ; excluded them from pri- 
vate succession in some cases, 65 ; question ari- 
sing out of this law, 37 ; date of the Salique-law, 
65, note. 

Sanctuary, privilege of, accorded to monasteries, 
467. 

Saracens, first conquests of, in the east, 251 ; and 
in Africa, ib. ; they invade France, and are de- 
feated by Charles Martel, 19 ; ravage that coun- 
try again, 25 ; driven out of Italy and Sicily by 
the Normans, 128, 129; the probable inventors 
of gunpowder, 184 ; Spain conquered by them, 
198, 251 ; decline of the Saracens, 252; separa- 
tion of Spain and Africa from them, 253 ; decline 
of the khalifs in the east, 253, 254 ; Saracenic 
architecture, not the parent of Gothic architec 
ture, 493, note. 

Saragosa (city of), captured from the Moors, 199. 

Sardinia (island), conquered by the Pisans, 166 ; 
from whom it was taken by the King of Aragon, 
167. 

Saxons, savage state of, before their conquest of 
England, 327, 328. 

conquered by Charlemagne, 21. 

Saxony, emperors of the house of, viz., Otho I., 
126, 227 ; Henry II., 127, 228. . 

Scabini, a species of judges, jurisdiction of, 108. 

Scandinavian sea-kings, notice of, 319. 

Scholastic philosophy, derived from the Arabs, 526, 
note; account of the principal schoolmen and 
their principles, 526—529. 

Schools (public), first estabhshed by Charlemagne, 
523. 

Scriptures, versions of, made in the eighth and 
ninth centuries, 507,508; the general reading of 
them not prohibited until the thirteenth century, 
508. 

Sects, religious, sketch of, during the dark ages, 
j03 ■ Manichees, ib. ; Paulicians, their tenets and 



566 



INDEX. 



persecutions, 504, and notes ; the Albigenses, 504, 
505; proofs that they held Manichean tenets, 
505, and notes ; origin of the Waldenses, ib., and 
note, 507, note ; their tenets, 506, and note ; the 
Catharists, ib. ; other anonymous sects of the 
same period, 507, 508 ; the Lollards of England, 
508 ; Hussites of Bohemia, 508, 509. 
Selden (Mr.), theory of, concerning the nature of 

baronies, 357 ; observations thereon, 357, 358. 
Serfs, state of, in the feudal system, 89—92 ; pre- 
dial servitude not abolished in France until the 
revolution, 91, note; became free by escaping to 
chartered towns, 119, note. See Villeins. 
Sforza Attendolo, rivalry of, with Braccio di Mon- 

tone, 185. 
Sforza (Francesco) acquires the dutchy of Milan, 

18.5, 186. 
Sheriff, power of, in omitting boroughs that had 

sent members to parliament, 407. 
Sicily (island of), conquered by the Normans under 
Roger Guiscard, 129; whom Leo IX. creates 
King of Sicily, ib. ; state of affairs after his death, 
136; rebellion of the Sicilians against Charles, 
count of Anjou, 186; massacre of the French, 
called the Sicilian vespers, ib. 
Sigismund (king of Hungary), reign of, 245. 
Silk, manufacture of, when introduced into Italy, 

480. 
Silver passed chiefly by weight in the first ages of 

the French monarchy, 93. 
Simony of the clergy in the eleventh century, 

282. 
Sismondi (M.), observations on his Histoire des 

Republiques Italiennes, 125, 126, note. 
Sithcundman or petty gentleman, rank of, among 

the Anglo-Saxons, 331. 
Slave-trade carried on during the dark ages, 473. 
Soccage and soccagers, probable derivation of the 
terms, 352, 353, and notes ; the question consid- 
ered whether freeholders in soccage were liable 
to contribute to the wages of knights in parha- 
ment, 408, no/e. 
Society, different classes of, under the feudal sys- 
tem, 85 ; nobility, 85—87 ; clergy, 88 ; freemen, 
ib. ; serfs or villeins, 89 — 92; moral state of, im- 
proved by the feudal system, 124, 125 ; ignorance 
of all classes, 459—461 ; their superstition and 
fanaticism, 462 ; degraded state of morals, 469 ; 
love of field-sports, 470 ; state of internal trade, 
472 ; and of foreign commerce, 473. 

' , general view of the degraded state of, from 

the decline of the Roman empire to the end of 
the eleventh century, 450 — 474 ; commercial im- 
provement of society, 474—485; refinement in 
manners, 485—501 ; improvement of the moral 
character of Europe, 501 ; its causes— elevation 
of the lower ranks, 502 ; improved state of the 
police, ib. ; religious sects, 503 ; institution of 
chivalry, 509—520 ; the encouragement of litera- 
ture, 520-541 ; particularly by the revival of an- 
cient learning, 542 ; the invention of linen paper, 
542, 543 ; and the invention of the art of print- 
ing, 548, 549. 
Soldiers. See Mercenary troops. 
Spain, northern part of, conquered by Charle- 
magne, 21 ; extent of the feudal system in, 84. 

• , history of, to the conquest of Granada, 197 ; 

kingdom of the Visigoths, ib. ; conquered by the 
Saracens, 198; decline of the Moorish empire, 
ib. ; formation of the kingdom of Leon, ib. ; of 
Navarre, ib. ; of Aragon, 199 ; and of Castile, ib. ; 
capture of Toledo and Saragosa, ib. ; mode of 
settling the new conquests, ib. ; chartered towns 
or communities, 200, 201 ; military orders insti- 
tuted, 201 ; final union of the kingdoms of Leon 
and Castile, ib. ; conquest of Andalusia and Va- 
lencia, lb. ; expulsion of the Moors, why long de- 



layed, 202 ; civil disturbances of Castile, 203 ; 
reign of Peter the Cruel, ib. ; house of Trasta- 
mare, 204; John H., ib. ; Henry IV., 205; con- 
stitution of Castile, 206 ; succession of the crown, 
ib. ; national councils, ib. ; the cortes, 207; right 
of taxation, 208, 209 ; forms of the cortes, 211 ; 
their rights in legislation, ib. ; council of Castile, 
213 ; administration of justice, 213, 214 ; violent 
actions of some of the kings of Castile, 214; con- 
federacies of the nobility, 215 ; affairs of Aragon, 
ib. ; disputed succession to the crown after the 
death of Martin, 216; constitution of Aragon, 
218; liberties of the Aragonese kingdom, 218, 
219 ; office of the justiciary, 220 ; rights of legis- 
lation and taxation, 223; cortes of Aragon, 224; 
government of Valencia and Catalonia, ib. ; un- 
ion of Castile and Aragon, 225; conquest of 
Granada, 225, 226; notice of Spanish literature 
during the dark ages, 534. 

States-general, convoked by Philip the Fair, 101, 
102 ; representatives from the towns introduced 
by him, 101, and note ; motives for this conduct, 
102 ; the rights of the states-genera! as to taxa- 
tion, lb. ; states-general of 1355 and 1356, 103, 
104 ; never possessed any legislative power, 103, 
note ; under Charles VII., 105 ; proceedings of 
states-general of Tours, 100, 107. 

Statute of treasons explained, 76, notes. 

Statute law (English), observations on, 348, 349. 

Statutes, distinction between them and ordinances, 
376, 377 ; were sometimes left to be drawn up 
by the judges after a dissolution of parliament, 
395; fraudulently altered in consequence, 396. 

Stephen, wretched state of England during the 
reign of, 338. 

Stratford (archbishop), case of, 355, 356, notes. 

Students, number of, at the universities of Oxford, 
Bologna, and Pans, 524. 

Subinfeudation, origin of, 72. 

Subsidies (parliamentary), by whom assessed, 360 ; 
how granted, 430. See Supply. 

Succession to the throne, in Castile, 206; in Ara- 
gon, 218 ; among the Anglo-Saxons, 320; hered- 
itary succession established during the Anglo- 
Norman reign, 349, 350. 

Sumptuary laws, observation on, 486, 487. 

Superstition of the dark ages, one cause of the de- 
cline of learning in the Roman empire, 462 ; sin- 
gular instances of superstition, ib. ; mischiefs 
thence arising, 465 ; yet not unattended with 
good, 460. 

Supplies, granting of, claimed by the house of com- 
mons, 393 ; ap])lication of, directed by that bouse, 
394 ; attempt of the house to make supply de- 
pend on redress of grievances, ib. 

Supremacy of the state maintained by the sover 
eigns of Europe, 267 ; especially by Charle- 
magne, ib. ; progress of the papal supremacy, 
274 — 290 ; review of the circumstances which 
favoured it, 290 — 299 ; endeavours made to re 
press it in England, 299—301. 

Surnames, when first used, 85. 

Swabia (house of), emperors of: — Conrad III., 
230 ; Frederick Barbarossa, ib. ; Philip, 231 ; 
Otho, 139, 231 ; Frederick II., 139—142. 

Swisserland, sketch of the early history of, 246 ; 
insurrection of the Swiss against the tyranny of 
Albert, archduke of Austria, 246, 247; formation 
of the Swiss confederacy, 247, 248; excellence 
of the Swiss troops, 248 ; the independence of 
the Swiss confederacy ratified, 248, 249. 

Swords, when first generally worn, 463, note. 



Tactics (military), of the fourteenth century, ac- 
count of, 182, 183 ; invention of gunpowder and 



INDEX. 



firearms, 184, 185 ; use of infantry not fully es- 
tablished until the sixteenth century, 185. 

Taille, perpetual, when imposed in France, 56. 

Tallage, oppressive, of the Norman kings of Ens- 
land, 339. '' 

Tartars of Timur, incursions of, in Asia and Eu- 
rope, 258. 

Ta.xation, excessive, effects of, 47 ; taxation origi- 
nated m the feudal aids, 80 ; immunity from tax- 
ation claimed by the nobles of France, 94 ; direct 
taxation a source of the royal revenues, 96 ; 
rights of the states-general as to taxation, 102; 
last struggle of the French nation against arbi- 
trary taxation, 107 ; right of taxation in Castile, 
m whom vested, and in what manner regulated, 
208— aiO ; taxation of the clergy by the popes, 

'''axes, levied without convoking the states-general 
by John and Charles V., 105 ; remedial ordinance 
concerning them by Charles VI., ib. ; levied by 
his own authority by Louis XI., 106 ; what taxes 
levied in England under the Norman kings, 338, 

Tenants in chief by knight's service, whether par- 
liamentary barons by virtue of their tenures, 357, 
358; whether they attended jjarliament under 
Henry 111., 358, 359. 

Tenures (feudal), gradual establishment of, 69— 
73 ; nature of tenure by grand sergeantry, 190, 
7iote. 

Terence, observations on the versification of, 455. 

Territorial jurisdiction, origin and progress of, in 
France, 108, 109; its division and administra- 
tion, 109. 

Thanes, two classes of, among the Anglo-Saxons, 
321 ; were judges of civil controversies, 325 ; for- 
feited their military freeholds by misconduct in 
battle, 330 ; the term synonymous in its deriva- 
tion to vassal, 330, 331. 

Tithes, payment of, when and in what manner es- 
tablished, 263, 264. 

Toledo (city of) captured from the Moors, 199. 

Torture never known in England, nor recognised 
to be law, 428, and note. 

Tournaments, influence of, on chivalry, 516, 517. 

Tours, proceedings of the states-general of, 106, 

Towns, progress of, in England, to the twelfth cen- 
tury, 362, 363 ; when let in fee-farm, 363, 364 ; 
charters of incorporation granted to them, 304, 
365 ; their prosperity in the twelfth century, 365. 

Trade (internal), state of, in the dark ages, 472, 473 

Trade (foreign). See Commerce. 

Treaty of Bretigni, 43 ; of Calais, 44 ; of Troyes 51 

Trial by combat. See Combat. 

Trial by jury. See Jury. 

Troubadours of Provence, account of, 530; their 
poetical character considered, 530, 531. 

Turks, progress of 255 ; first crusade against them, 
lb. ; they conquer Constantinople, 259 : suspen- 
sion of their conquests, 200, 201. 

Tuscany, league of, formed to support the see of 



6G7 



TTrban VI. (pope), contested election of, 308. 

Usurpations (papal), account of, 274—277. 

Usury of the Jews, account of, 95, ordinance 
against it, 100; sentiments and regulations con- 
cerning It, 484, 485, and note. 



Rome, 138 ; state of, in the middle ages, espe- 
cially the cities of Florence, 156; and of Pisa 
166. ' 

Tyranny of the Norman government in England, 

337 J 338. 
Tything, real nature of, 328, 329. 
Tything-man, oowers of, 324. 

U. 

Uladislaus, king of Hungary, reign of, 245. 

Universities, when first established, 523 ; account 
of the university of Paris, ib. ; Oxford, 524 ; of 
Bologna, ib. ; encouragement given to universi- 
.les, ib. ; causes of their celebrity, 526—529. 



Valencia (kingdom of), constitution of, 22-J, 225. 
Varlets, education of, 516. 

Vassal and lord, mutual duties of, 75; particular 
obligations of a vassal, 76 ; he could not alienate 
his lands without his lord's consent, 78. 
Vavassors, rank of, 87. 

Vel, the Latin particle, used instead of e^, 96, note 
Velly (the historian of France), character of, 63, 64, 

note. 
Venice (republic of), origin of, 171 ; herdependance 
on the Greek empire, 172 ; conquest of Dalmatia, 
lb. ; acquisitions in the Levant, ib. ; form of gov 
ernment, 173 ; powers of the doge, ib. ; and of 
the great council, ib. ; other councils, 174 ; re- 
strictions of the ducal power, ib. ; tyranny of the 
council of ten, 175; reflections on the govern 
ment of Venice, 175, 176. 

, war of this republic with Genoa, 168—170 ; 

the Genoese besieged in Chioggia, and obliged 
to surrender, 169, 170; territorial acquisitions of 
Venice, 177; her wars with Milan, 178; account 
of her commercial prosperity, 479, 480; traded 
with the Crimea, and with China, 480, and 7wte. 
Versification of the ancient Latin poets, observa- 
tions on, 455. 
Vienna, description of, in the fifteenth century, 
487, 488, note. ^ 

Villaret (the French historian), character of, 63, 64, 

note. 
Villanage, prevalence of, 89 ; causes of it, 89, 90 ; 
Its gradual abolition, 91, 92; nature of the vil- 
lanage of the English peasantry, and its gradual 
extinction, 435—441 ; was rare in Scotland, 440, 
note. 
Villeins, different classes of, 89 ; their condition 
and duties, 90, 91 ; enfranchised by testament, 
91, note; but not without the superior lord's con- 
sent, ib., 7iote; in what cases they could or could 
not be witnesses, ib , note; their condition by the 
laws of William the Conqueror, 322; and during 
subsequent reigns, 435—441. 
Villein tenure of lands, 92. 
Virgin, superstitious devotions to, 465, 466, and 

notes. 
Virtues deemed essential to chivalry, 514. 
Visconti family, acquire sovereign power at Milan, 
151 ; their sovereignty gradually acknowledged, 
151, 152; created dakes of Milan, 152; tyranny 
of several princes of this family, 165. 
Visigoths, kingdom of, in Spain, 197. 

W. 

Wages of members of parliament, rates of, and how 
raised, 408, and notes ; of labourers in England, 
better in the reign of Edward III. than now, 500. 
501. ' 

Waldenses, origin of, 505, 506, and note ; their te- 
nets, 506, and note. 

Wales, ancient condition of, and its inhabitants, 
434, note ; members of parliament, when sum 
moned from that country, ib. 

Walter de Brienne (duke of Athens), notice of, 159, 
160; elected signior of Florence, 159; his tyran- 
nical government, 160 ; abdicates his oflice, ib. 

Wamba (king of the Visigoths), whether deposed 
by the bishops, 268, note. 

Wardship, custom of, explained, 80. 

Warna, notice of the battle of, 245. 



668 



INDEX. 



V\eavers (Flemish) settle in England, 475, note, 

476, note. , 

Wencesiaus (emperor of Germany) deposed, 236, 

237 

Weregild, or commutation for murder, rates of, 66 ; 
amount of thanes or nobles among the Anglo- 
Saxons, 321 ; for a ceorl or peasant, ib. 

Whitelocke, observation of, on the bulk of our stat- 
ute law, 349, note ; his mistake concemmg the 
three estates of the realm determined, 403, 404, 

Wklfffe (John), influence of the principles of, in 
restrainmg the power of the clergy m England, 
313 ; their probable influence in effecting the abo- 
lition of villanage, 439. -r. , j 

William (duke of Normandy), conquers England, 
332 ; his conduct at first moderate, 333 ; after- 
ward more tyrannical, ib. ; confiscates English 
property, 334 ; devastates Yorkshire and the New 
Forest, ib.; his domains, 335; his mercenary 
troops, ib. ; estabUshes the feudal system in Eng- 
land, ib. ; preservation of public peace during his 
reign, 336 ; account of his laws, 340. 

Winton, statute of, 434. 

Wisbuy, ordinances of, 482. 

Wittenagemot, or assembly of wise men, how com- 
posed, 322, 323; quaUfications for a seat m that 
council, 323. 



Women, excluded from the throne ot France by 
the Salique-law, 38; and from inheriting the 
lands assigned to the Salian Franks on their con- 
quest of Gaul, 65; but not from lands subse- 
quently acquired, ib. ; how treated by the ancient 
Germans, ib., note ; did not inherit fiefs, 82, note. 

Wool (unwrought), exported from England, 475 
476; penalties on such exportation, 476, 477, 
note. 

Woollen manufactures of Flanders, 474 ; causes ol 
their being carried into England, 474, 475, 7iote; 
introduced there by the Flemings, 475, note; 
progress of the English woollen manufactures, 

■ 476 ; regulations concerning their export, ib. 

Worms. See Diet of Worms. 

Writing, an accompUshment possessed by few ui 
the dark ages, 459. 

y. 

Yorkists, civil wars between, and the Lancastri- 
ans, 447. 

Yorkshire devastated by William the Conqueror, 
334. 



Zisca (John), character and achievements of, 244 



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